Every now and then one comes across a claimant who knows the
twists and turns of the workers compensation system. These claimants are mostly dependable and good workers. But when a potential subjective injury happens, they are the people to watch out for.
The insurance industry calls these people “career claimants.” When a background check is done, they have a list of prior claims a mile long. Having many prior claims does not necessarily mean they are bad workers; perhaps they are injury-prone. It is very interesting, however, when claims are filed, they are sneaky enough to do just enough to keep the wheels turning on their claim to remain out of work or on medical restrictions. Odd how that happens…
Adjusters can use their defensive tools to get these claimants off workers comp. Even when adjusters do IMEs, surveillance, and speak with the physicians providing the treatment, nothing seems to get this type of worker back to full duty.
When claimants know too much about how the workers comp system works, they use it to their advantage by:
1. Having the physician on their side
Physicians usually base opinions on medical evidence.
Tricky claimants know what to tell and what not to tell the doctor. They use the Internet as an information source. For example, if someone sustains a back strain, acceptable symptoms are researched to report without over-exaggerating the symptomology to cause the treating physician to see red flags.
Limited range of motion, muscle spasm, and bringing up pain complaints tell a doctor if the person is or is not hurt. The doctor proceeds presuming the patient is reporting honesty and may keep the patient on restrictions, on continuing treatment, and off work. This is where the independent medical examination (IME) comes into play. It is always good to have another opinion just in case the treating doctor is not being proactive in moving the patient along to full duty, especially if the subjective complaints do not match the objective evidence on examination.
2. Rescheduling doctor and physical therapy appointments
Everyone has a life outside of work. However, constant rescheduling of medical appointments is a
red flag for the
adjuster. Maybe now and then a physical therapy appointment is missed, especially when working light duty. But, it is important to remember legitimate injured workers want to get treatment in order to heal and return to full duty.
A typical lumbar strain does not necessarily prevent a person from being active or running errands, but if a trend arises of constant rescheduling — THINK — what else is going on besides the injured worker’s schedule. Surveillance is a handy tool to confirm suspicions. It is especially helpful if the injured worker is caught in a lie. If the worker reports to the adjuster therapy is missed even when off work, and surveillance shows the employee doing yard work instead of going to physical therapy, that is evidence to suspend the claim due to non-compliance with the treatment plan provided by the doctor.
Hot Tip: One therapy office has a policy of charging the patient the full amount of the missed appointment unless given 24-hour notice. They present patients with this written policy at the beginning of therapy and make them sign indicating they understand they will be charged and their insurance will not be billed.
3. The claimant knows the lingo
One thing jumping right into the adjuster’s face is a claimant knowledgeable about the injury in medical terms. The average person does not use words like radiculopathy, impingement, and stenosis or know what they mean.
Even more striking is when a worker discusses a settlement or redemption early on in the claim. This should lead the adjuster to believe the worker has been down the workers comp claim road before. Most times, when a background check is done it shows prior litigation experience with prior employers. These are all red flags indicating you really want to keep an eye on this claimant.
4. The claimant is off work and cannot be found
When a claimant has a legitimate injury and is off work for a while, it is good idea to do surveillance just to see what the worker is up to. After a few days, if the video only shows the worker poking a head out of the front door to retrieve the mail, it is always a red flag. The person may have a prior claim history, broke restrictions and the claim was denied or suspended.
Or even worse, when you go to do surveillance the worker cannot be found anywhere. The worker might be staying at another location or at another property. When you talk to the employee, excuses are made about how pain is so disabling all that can be done is to stay home and rest. However, something is awry if you go to do surveillance and the car is not in the driveway.
5. The worker misses a few therapy appointments every week
Remember, injured workers with legitimate injuries want treatment so they can heal and return to work. In a red flag claim when a person goes to some treatment, but not all and not all the time, this means they are doing just enough to keep the claim alive, but missing just enough treatments to not get better.
The unsaid rule in claims is the longer a person is off work, the harder it is to get them back to work. This is where a light-duty work program comes in handy. Light duty forces the worker to go to work. It also forces them to go to treatment, especially if one has to leave work to go to therapy and then return to work to finish the shift. (WcxKit)
Doing just enough to keep the adjuster from disputing the claim shows the claimant knows a little bit about how the claims system works. As an adjuster, if a person makes 75 percent of the medical appointments, is that really going to stand up in court if you pull the trigger and file a dispute or suspension?
Summary
Just one of these does not mean your employee is cheating your — and a claimant may be well-informed and quite honest. But, there are some smart claimants who know how to work the system. If, as the adjuster, you spot one of these claims, it is your role to stay on top of every aspect of the claim. Make sure if workers miss appointments they have some sort of documentation to support absences. The more pressure you put on them the better result you will have in defeating unethical claimants at their own game.
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.
For the most part, workers compensation claims are generally compensable. The general public thinks the opposite — that all insurance companies want to deny injury coverage.
In actuality, probably 80 to 90 percent of claims are accepted in the beginning. But, claims can be denied later down the road for various reasons. How does an employer properly dispute a claim when there is a compensability question?(WCxKit)
4 Strategies to Dispute a Claim
1. If a reported claim is questionable, the adjuster needs to know right away so a proper dispute for investigational purposes can be filed.
At the time a claim is reported to the carrier, employers will know more than the adjuster. Once the adjuster receives the file, he or she sets up the claim, contacts the employee and employer, reviews medical records, and only then makes an initial decision.
But if the employer calls the claim questionable, it should be marked as questionable right away so the adjuster can file a dispute that the claim’s compensability is under investigation. Most jurisdictions have a time limit on how long the claim investigation can be. If the adjuster fails to file for the extension within the time limit, the claim could be conceded as compensable — at least in the beginning.
This leads to leakage because claims dollars are being spent on a claim that may not be compensable. It takes time to take statements, get medical records, get past records, do background checks, etc. If an adjuster can file that extension right off the bat, they can take time to really investigate the claim and make the proper decision on compensability.
Generally, questionable claims receive more of the adjuster’s investigative attention. This is especially true when the employer notes on the first report of Injury that the claim is questionable; this automatically raises a red flag for the adjuster. The adjuster will review the claim’s initial parts and form questions to ask the employee when taking their statement.
An adjuster’s first call will be to you, the employer, asking why the claim is questionable. Employers can talk to witnesses, and follow up on leads made by other employees that a claim may not be 100 percent compensable and pass that information on to the adjuster in the beginning of their investigation.
All of these issues greatly help the adjuster, and after the investigation is completed, a proper decision can be made on the claim as to overall compensability.
2. What if a claim starts off as compensable then needs to be disputed later on?
A claim can start off as compensable and then change. For example, an employee strains his back while working. There was a witness and it was reported promptly. The worker was sent for treatment the same day. Usually benefits will be conceded and the claim will be accepted into initial stages.
But, a month later the claimant tells the doctor he hurt his back the weekend before the work injury doing yard work, then he made it worse while working. This should lead to a dispute in all cases. The adjuster has no way of knowing how bad the claimant had injured themselves while outside of work, and most often the injured worker will not be able to go back and say the injury/ongoing disability is 100 percent work related.
Unfortunately, these cases are hard to come by. Claimants are no dummies, and even if this did occur most do not go to an occupational clinic and tell the doctor about how they injured themselves outside of work. But it does happen, and the adjuster should catch this every time. This can be seen in emergency department records, too.
3. What if a worker is injured doing a simple task, and the diagnosis is way worse than it should be in relation to what the worker was doing at the time of injury?
For examples like this, adjusters rely on the medical records and the mechanism of injury. For example, a claimant states she sustained a lumbar strain while at work lifting a 20-pound tote of parts. Then the doctor finds all sorts of objective evidence on exam of severe, disabling back pain. Something is not right. Lifting 20 pounds should not have such excessive force that it herniates multiple lumbar discs. The adjuster should set an independent medical evaluation (IME), and let the IME physician comment on the severity of symptoms in relation to the stated work injury.
This type of scenario is a lot more common than one would think. The general public probably has never had a diagnostic workup on their spine or an MRI test. If a claimant sustains a simple injury and the resulting MRI shows all sorts of issues, it does not mean they all are related to the work injury.
An employer also has to beware of false positives. Just because someone has multiple levels of disc bulges, does not mean all of those are related to work. Research shows workers of all ages and occupations can have a varying level of degree of spinal issues. It is the adjuster’s job to determine what, if anything, is related to the work injury, treat those issues, and deny ongoing treatment for the rest of the worker’s spinal problems.
4. If you know the injury is not legit, should you file the claim anyway?
The answer is in all cases is YES. It is the adjuster’s job to determine if an injury occurred out of the course and scope of employment. A human resources professional is not an adjuster (at least not very often), and if a worker comes to you and alleges a work injury, no matter what the circumstances, it should be reported to your carrier. The adjuster has training and certification, and he or she is qualified to deny claims. Some jurisdictions can carry heavy penalties for failure to report a work injury to the carrier. You do not want to be hit with one of those penalties. The company pays a carrier’s premium to be protected in insurance matters. This is what they are there for. The employer should gather all the pertinent details and report the claim promptly. Indicate on the first report of injury that the claim is questionable, and go from there. Follow up with the adjuster, and chances are it will be denied as you suspect.(WCxKit)
In sum, there are several way to dispute a questionable claim. But the most important thing an employer can do is gather all the information on the claim before reporting it promptly to the carrier. Then, follow it up with a phone call to the adjuster. The more you work together with your carrier, the better chance the questionable claims will be denied.
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.
There are times while engaged in a workers compensation file that you are better off just settling the file out, redeeming all costs for medical, wages, and future medical exposure. Some files will not necessarily call for a full settlement, maybe it is better to settle either wages or medical, or both, but it has to be done when the scenario calls for it. Some examples are below.
Note: These are general examples, and all actual claim situtations should be reviewed by your legal counsel.
1. The injured worker has been terminated by the employer
The cause of a good percentage of litigated files comes when the employer terminates employment with the claimant during the course of their injury and subsequent rehabilitation. The claimant feels they were terminated unfairly due to their injury, and this will send them directly to a plaintiff attorney. This will open up significant exposure for ongoing wage loss, and it will extend the life of a claim. (WCxKit)
On most occasions you are better off waiting to drop the axe on termination until the claimant has either reached their end of healing, or the end of the case. This way, if you want to settle the file, you can include the voluntary resignation of the claimant from the employment.
Note: consult with legal counsel before settlement, having them review voluntary resignation to make sure it meets requirements of state law as "voluntary" and that it complies with all other requirements.
2. The injured worker has no job to return to within their permanent medical restrictions
This scenario happens a lot when a major surgery or amputation is involved. The job the worker once did can no longer be done by that worker. You have the option of moving the employee to another department or position, but often with smaller companies the option is just not there.
This is a good time to settle the wage portion of a claim. If you know for sure the worker can no longer do the job they once did, and you do not want to spend the cost of vocational retraining or vocational job placement, then you should settle out the wage portion of their claim. Again it is best to wait until their medical situation stabilizes before you approach this topic. You do not want to pursue this too early, as the claimant may try to stretch out their medical recovery, further securing their wage loss benefits and adding to the cost of the claim’s wage loss.
Depending on the job, some claimants will know they have little to no hope of returning back to work at their old position. But not every injured worker is easy to deal with. Changing jobs or losing your job is a major roadblock in a claim, and it can be costly to settle out the wage portion of these claims. But in the long run, it is worth it. Vocational training and placement is not a guarantee, and you do not want to incur those costs and then also have to settle the wage portions out when you cannot find the injured worker a job.
3. The injured worker still works for their employer, but their case is denied coverage under workers compensation
In this case you do not have to settle the wages and medical to include a voluntary resignation, unless you want to add it in. If the adjuster denied the case as being compensable, but the worker filed their claim under their disability coverage, and then filed for hearing after returning to work once released from medical care, this is a case to settle after all the exposure for wage loss and medical bills are gathered.
This case gives you the total exposure, since the lost wages are known, and the medical cost to full duty is known. This is known as a “closed period” settlement.
Typically the adjuster will have to negotiate a lien with the medical carrier, and a compromise will be made on the wage loss the worker incurred. Unless you have a fantastic denial and can take your defense all the way to trial, it is best to make the compromise and settle for a portion of the exposure. This is probably the most common litigation example in the world of workers compensation.
4. The worker's case was disputed by the comp board, and then they were laid off due to workforce reductions. The injured worker was paid unemployment, and their medical carrier paid the medical cost to full duty
Here we have an example of taking a wage loss offset, and negotiating a medical lien. This is a fairly simple case to settle. Most states will allow a claimant to get unemployment pay when they are laid off. Even when they are off on a medical leave. This is a "collateral source benefit" because the employee may be making more when not working than when working.
However, if this person files for litigation, the insurance company can offset what the full-wage loss would have been, so, in essence, they get a credit for the wage loss, and only have to deal with the medical lien from the carrier. These medical carriers are usually easy to negotiate with, and most liens can be settled for easily up to 50 percent of their cost.
Medical carriers will also get a better fee reduction than workers compensation insurance carriers, so not only does the workers compensation carrier get a credit for the unemployment pay the worker received, they also get cheaper medical cost for all the medical expenses the injured worker incurred during their treatment and recovery. These are also usually closed-period settlements, and can be redeemed for a relatively low legal cost.
5. The injured worker files for an occupational injury claim, naming several employers as the defendants
Occupational injury claims are usually filed by seasoned workers who have spent their lives working for several employers. When their shoulder or back finally gives out and they need surgical repair, if they seek out an opinion at a plaintiff attorney’s office. The counsel will usually file a hearing for an occupational injury claim, and they will list all of the claimant’s past employers, since they will assert that each period of employment lead to the accelerated degeneration of the worker’s body, which lead to the ultimate injury they incurred.
In this case, each employer will contribute an amount towards a global settlement. The exposure of each employer will depend on the duration of employment, types of jobs the claimant performed, and the associated risk involved in relation to the injury. The hardest part about these claims is figuring out how much each adjuster should have to contribute. Once the adjuster takes all the past employers and the exposure into consideration, they will nominate a general amount for the represented employer’s exposure, and once all parties agree on all the amounts the case can be settled. It can take some time for all carriers and adjusters to agree, but they eventually get there and the case can be resolved.(WCxKit)
Workers compensation claims are settled all the time, usually for one of the reasons outlined above. As you can see, you have a number of opportunities where a settlement is the best option, and you should discuss with your adjuster if this is the road you should explore, instead of incurring other costs to bring an injured worker back to work at your place of employment. This differs from my normal opinion of bringing every able employee back to work.
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.
A 55-year-old Iowa woman will receive more than $2.3 million from her lawsuit against her employer.
According to the Associated Press, the Monroe County jury verdict came in the case filed by Debbie Erwine, of Batavia, against UGL Services Unicco Operations Co. and a past supervisor. WCxKit
Erwines lawsuit alleged she was subjected to sex discrimination while overseeing maintenance and cleaning crews at the Cargill plant in Eddyville.
According to one of the documents, Erwines supervisor demoted her in the summer of 2008 due to the fact he "needed a man in that position so that he would be able to understand the mechanical aspects."
Erwine was terminated in December 2008. She sued a little less than one year later.
According to a UGL spokeswoman, Erwine was let go for violating company policy. (WCxKit)
The verdict includes $400,000 for emotional distress and $100,000 toward physical pain.
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.
The Montana Supreme Court has thrown its backing behind a Workers Compensation Court ruling that a man who was mauled while feeding the bears at a tourist attraction is eligible for workers comp coverage.
According to the Associated Press, Brock Hopkins filed a claim with the Uninsured Employers Fund, which denied it due to the fact Hopkins had smoked marijuana prior to entering a bear enclosure at Great Bear Adventures near West Glacier on Nov. 2, 2007. (WCxKit)
Park owner Russell Kilpatrick claimed that Hopkins was a volunteer and fed the bears after Kilpatrick informed him not to.
The Workers Compensation Court stated Hopkins was an employee and claimed there was no evidence that impairment from smoking marijuana led to the mauling.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Federal contractor InterCall will pay $700,000 in back wages, interest and benefits to 151 minority job applicants who were subjected to discrimination by the company.
The settlement follows an investigation by the U.S. Department of Labor's Office of Federal Contract Compliance Programs, which found that 103 black, 28 Asian and 20 Hispanic job applicants were systemically rejected for sales associate positions at the company's Chicago offices in 2006 and 2007. In addition to financial compensation, InterCall will extend a total of 14 offers of employment to affected applicants as positions become available. (WCxKit)
"I'm pleased that we were able to work out a fair resolution on this case," said OFCCP Midwest Regional Director Sandra Zeigler. "Companies that do business with our government have a responsibility to ensure that their workplaces are safe, fair and diverse. Going forward, we expect that will be true at InterCall."
During a scheduled compliance review, OFCCP determined that the company had violated Executive Order 11246, which prohibits federal contractors and subcontractors from discriminating on the basis of race and national origin in their employment practices.
Under the terms of the conciliation agreement worked out between the Labor Department and InterCall, the company will pay $700,000 to be divided among the 151 affected minority applicants who return timely notifications. The company also has agreed to undertake extensive self-monitoring and corrective measures to ensure that all employment practices fully comply with the law and will immediately correct any discriminatory practices. (WCxKit)
InterCall, a subsidiary of West Corp. of Omaha, Neb., is the worlds largest conferencing provider. Between 2005 and 2008, the company had a $1.7 million contract to provide software, telecommunication support and recording services to the U.S. Department of Health and Human Services.
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
Obtaining the fair and reasonable resolution of the workers compensation claim often involves an element of negotiations between the work comp adjuster and the employee or the employee's attorney [for the purpose of this blog, the focus will be on negotiations with the employee's attorney]. While a few states still use a permanency rating combined with the average weekly wage to determine the settlement value of a work comp claim, most states/jurisdictions have evolved into a negotiated settlement of the work comp claim.
The primary responsibility of all work comp adjusters is the fair and reasonable settlement of claims. Throughout the course of the claim, the file disposition/settlement should be addressed in every action plan of the adjuster. Every contact with the employee's attorney should include efforts to move the file toward conclusion. (WCxKit)
The settlement negotiations with the employee's attorney start with the first notice of representation by the attorney. The adjuster should acknowledge the attorney's letter of representation with the adjuster's own letter advising the adjuster looks forward to working with the attorney to be sure the employee receives all appropriate medical care and any rehabilitation needed to return the employee to full employment with the employer. The purpose in sending this letter is to establish the adjuster as the one controlling the work comp claim, not the employee's attorney.
The settlement negotiations will be impacted by how the adjuster handles the claim. In the states where the employer selects the medical provider, the work comp adjuster should monitor the medical treatment and make timely inquiries with the medical provider(s) on the employee's ability to return to work either full duty or modified duty.
In the states where the employee selects the medical provider, the adjuster also needs to make timely inquiries about the employee's ability to return to work either full duty or modified duty. If the medical provider is non-cooperative with the adjuster on arranging for the employee to return to work, the adjuster needs to use peer reviews, independent medical examinations and any other tools at her/his disposal to insure the employee returns to work as soon as the employee is able.
The work comp adjuster should be inquiring about the employee's medical recovery with every contact with the treating physician's office or with the employee's attorney. If the injury justifies it, the use of a nurse case manager to monitor and control the medical care should be done. By close monitoring of the progress of the claim, the adjuster will keep the claim from being inflated unnecessarily.
Every step to assist the employee in medical recovery and returning to work will impact the overall disability rating given when the employee reaches maximum medical improvement. By asserting influence on the return to work and the overall disability rating, the adjuster is lowering the initial settlement demand made by the employee's attorney and is lowering the final settlement value.
Once the work comp claim has reached the point where the employee is ready to settle the claim, the adjuster should create a settlement negotiations action plan. Any claim that warrants a settlement offer should have a settlement range that will be a part of the negotiation strategy. The action plan should outline what the adjuster believes the settlement value or settlement range of the claim is and how the adjuster plans to reach that value in the settlement negotiations. If the settlement range is above the adjuster's authority to settle the claim, the adjuster should obtain settlement authority from the appropriate party prior to the start of any settlement negotiations.
A mistake often made by work comp adjusters is to make a settlement offer before any settlement demand is received. While the adjuster may feel her/his settlement evaluation is correct, whatever the amount offered, the employee's attorney will negotiate up from that amount. It is better to let the employee's attorney make his settlement proposal and negotiate down from that amount.
After the employee's attorney has made his initial settlement demand, the adjuster should evaluate how reasonable or unreasonable the employee's attorney is in his settlement demand. Depending on where the attorney's demand is in relation to the settlement range established by the adjuster, the adjuster's settlement offer should be at least as far below the settlement range's midpoint as the attorney's demand was above the midpoint of the adjuster's settlement range. With this approach the adjuster can raise the settlement offers to match the attorney's drops in settlement demands until the settlement negotiations reach a conclusion within the settlement range established by the adjuster prior to the start of the negotiations.
In some settlement negotiations the employee's attorney will stop negotiating or state they have reached their bottom offer. This is often a ploy to get the adjusters to bid against themselves by getting the adjusters to raise their settlement offer more than once without the attorney lowering demands. The purpose of this tactic is for the attorney to reach a higher settlement figure than the case might justify. Of course this tactic can also be used by the adjuster. The adjuster can advise she/he has reached her/his top settlement offer. The employee's attorney may decide to accept the adjuster's “top offer” or at least lower their settlement demand in an effort to continue the settlement negotiations.
The employee's attorney will have discussed the settlement value of the claim with the employee prior to entering settlement negotiations. A favor tactic of many attorney's is to say they believe the adjuster's offer is too low, but will discuss the matter with the employee and get back with the adjuster. When the attorney calls the adjuster back, the offer is too low, but the employee is anxious to settle and they will consider taking such and such amount, higher than the offer made. Again, this is a settlement tactic to get the adjuster to raise the settlement offer.
The adjuster can use the tactic of telling the employee's attorney that the settlement demand by the attorney is too high, but the adjuster will discuss it with the claims manager, the self-insurer or whoever. When the adjuster recontacts the employee's attorney, the adjuster will advise the attorney that the demand is too high, but in interest of getting the claim settled, the settlement offer is increased to a higher number than the prior offer.
A settlement tactic used by some attorneys when the negotiations are not going the way they want, is to tell the adjuster that the employee has had a relapse or his condition is worsening and send the employee back to the treating physician for medical treatment. The adjuster should resist this effort to force a higher settlement offer. The adjuster should immediately arrange for an independent medical examination of the employee to determine if there is really any deterioration in the employee's condition. If the employee's condition has truly worsened, the adjuster should reevaluate the settlement range. If not, the adjuster should resist this effort to force a higher settlement. (WCxKit)
In summary, regardless of what the employee's attorney says or does, the adjuster is responsible for obtaining a fair and reasonable settlement of the work comp claim. The adjuster should approach the settlement value from the low side at the same pace the employee's attorney approaches the settlement value from the high side. By taking this incremental approach, the work comp adjuster should negotiate a settlement that is fair to both the employee and the employer.
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.
©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 University of Notre Dame has been fined $77,500 for ignoring industry standards that could have prevented the death of a football team videographer who died last year after the hydraulic lift he was using toppled in strong winds, the Indiana Occupational Health and Safety Administration reported.
The fine marks the culmination of the agencys investigation into the death of student Declan Sullivan. The accident was labeled a preventable workplace fatality. (WCxKit)
"Notre Dame did not establish and maintain conditions of work that were reasonably safe for its employees," the agency remarked in a statement.
Sullivan, a 20-year-old film and marketing student from Illinois, was working as a paid employee of the schools athletic department on Oct. 27, when he went up in an aerial scissor lift to document the football teams practice.
The National Weather Service had issued a wind advisory for the day, and gusts reached 51 mph about the time of Sullivans fall. The lift carrying Sullivan crashed through a fence and landed on a street. (WCxKit)
After Sullivans death, Notre Dame officials were criticized for failing to take responsibility for the incident and for appearing to put the teams interests ahead of the student videographer.
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
A $60,000 payment to settle a harassment and discrimination lawsuit filed by a city employee has been approved by the Des Moines City (Iowa) Council.
According to theDes Moines Register, the payment goes to Stephanie Trujillo and her attorney, Karin Zeigler. The settlement was given the go-ahead without discussion at the council meeting. (WCxKit)
The lawsuit filed in Polk County District Court named the city of Des Moines, Human Resources Director Tom Turner and human resources manager Michael Carter as defendants.
In the suit, Trujillo stated a department head made inappropriate comments regarding her breasts, and that another supervisor joked regarding symptoms that were due to a brain lesion.
Zeigler filed paperwork in district court to have the claims against Turner and Carter dismissed with prejudice, which means Trujillo cannot invoke additional action on the same claims.
The settlement “is not an admission of wrongdoing or liability, merely a compromise of contested facts,” according to the resolution the City Council will vote on.
Trujillo was employed in the Human Resources department from 1997 until she was dismissed in June 2010, according to the lawsuit.
Trujillo started suffering from late-stage Lyme disease in March 2008, which led to a large brain lesion and severe cardiac and neurological problems, the lawsuit said. She also was diagnosed with pernicious anemia, a disease that can lead to fatigue, nausea and weakness.
The lawsuit sought damages to compensate Trujillo for emotional distress, punitive damages to deter likewise behavior in the future, attorney fees, interest, back pay and benefits. Trujillo also requested policy changes and employee training to prevent sexual and disability harassment. (WCxKit)
In December, Zeigler noted that Trujillo had recovered from the brain lesion and was being treated for her anemia. The harassment had ceased, she indicated at the time.
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.
Often the Risk Manager or the employer's workers compensation claims coordinator who is actively involved in their work comp claims will wonder: “Why in the world did the adjuster pay that much money to settle that claim?” There could be several reasons why the claim settlement is higher or even much higher than was expected, but the reason in many cases is the adjuster is not a good negotiator.
Some adjusters are excellent negotiators, but many adjusters would rather go to the dentist then aggressively negotiate claim settlements. The reasons some adjusters are not good at negotiating settlement vary. Some adjusters see negotiations as being confrontational and it does not fit in with their personality. Some adjusters are not motivated and would rather let the defense attorney or someone else handle that part of the claim. While personality and laziness are the reasons some adjusters do not negotiate good settlements, the primary reason the majority of adjusters overpay claims when the negotiate a settlement is they do not know how to negotiate. (WCxKit)
A major state university offering an undergraduate program in risk management, a graduate program in risk management and a PhD program in risk management does not offer a single course in settlement negotiations. This holds true for most insurance training.
The insurance companies and schools that train adjuster trainees spend all their time teaching the insurance policy provisions and the necessary information to pass the state's adjuster licensing exam. Insurance companies will often spend weeks training a new adjuster on intricate part of the insurance coverage, but not spend one minute teaching the adjuster how to spend their money.
With this in mind, what should the employer do? The employer should review who the adjusters are that handle the claims for your company. Hopefully, you have previously arranged for your claims to be handled by either a designated adjuster who handles all of your claims or a group of adjusters assigned to your account who handle all of your claims. (If your claims are being assigned willy-nilly to many different adjusters, that is half of your high claim settlements problem right there).
When you have your claims assigned to the minimum number of adjusters, you can use your data management system to sort the claim settlements by adjuster. This will assist you in identifying which adjusters who routinely get good claim settlements and which adjusters routinely seem to pay the most on the work comp claims they handle. If you have an adjuster or adjusters who are routinely overpaying claims, ask the insurer or the third party administrator to reassign your claims to the adjusters who routinely get good settlements. If the adjuster(s) who get the best settlements have a full caseload (and they usually do), that may not be possible. If you cannot get the claims reassigned to the adjuster with the best settlements, at least get your claims reassigned to another adjuster(s).
There are some other approaches to getting better claim settlements you can consider. If the claim is large enough to warrant your time, and you are self-insured, you can instruct the claims administrator for the adjuster to refer the settlement negotiations to yourself. You might find settlement negotiations more difficult than you expect, but you may also find that the half million dollar claim the adjuster was talking about is really only a quarter million dollar claim.
Some large self-insurers who have given up on their adjusters getting a good claim settlement routinely refer all their larger claims to their legal defense firm(s) to negotiate the settlement. As the defense lawyers are working directly for them, and have a lot more practice resolving confrontational situations, they often obtain a much better settlement than the claims adjuster would have. (They are also much more suave in their explanation as to why the claim cannot be settled as the risk manager thought.)
Another approach some large self-insurers have taken on their large claims is to have a structured settlement broker negotiate the settlement. This works if the structured settlement broker has some legal experience and can deal with the vast array of work comp legal system intricacies. (WcxKitz)
In still other companies, the risk manager negotiates the claims to settlement. He gets authority from the carrier then goes to the hearing to settle the claims personally.
While we cannot tell you what the exact, best approach is for controlling the cost of your claim settlements, we do recommend that you spend some time analyzing the situation. Once you have identified the adjusters who routinely overpay your claims, you can take the necessary steps to change the situation.
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.
WC IQ TEST: http://www.workerscompkit.com/intro/
©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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