Unknown Is Not Good Enough in Work Comp Claims

Basic Information Critically Important in Claims

 

A recent NY comp decision,” Lama v SPK Restaurant, Inc.” (10/25/12), demonstrates the importance of employer providing accurate basic info as soon as possible on any alleged claim. A claim made by a person unknown to, and never employed by, the alleged employer should not be responded to by sending a document to the Board, carrier or TPA simply saying “unknown”.

 

 

Employee Alleged Assignment

 

In the “Lama” decision, a person alleged that they were assigned to sweep the sidewalk in front of 325 Broadway, NYC, on 9/14/01 (three days after the 9/11 attack) and as a result, developed pulmonary problems.

 

The worker consistently said that his employer was a Mr. Gelestathis and that the employer owned the Empire Restaurant in a one story building at 325 Broadway.

 

 

Employer Did Not Own Business or Employ Claimant, Ruled Liable

 

Mr. Gelestathis FORMERLY owned the Five Star Deli at 325 Broadway, but sold in to SPK Rest, Inc. in March 2000, who operated it as Wall Street Grill in a multi-story building.

 

Therefore, the claimant’s version was impossibly wrong as to a description of the building, the name of the restaurant, and the name of the owner, yet the Board ruled that SPK Restaurant, Inc. was the employer. The court reversed and said that NONE of the facts was consistent with that decision.

 

 

Matter Could Have Been Avoided

 

The entire matter could, probably, have been terminated far, far sooner if the alleged employers had promptly provided fuller evidence in a response. The Board assigned an investigator to locate an Empire Restaurant, and found none near 325 Broadway, but the same info could easily have been provided by both alleged employers far faster. A photograph of the location should have been included in the response, which would have shown that the claimant could not possibly be describing the alleged address. Phone books pages from the years 2000 and 2001 would have shown that no business fitting the name was listed at that address and that another restaurant entirely was there. A photo of the upper floors would have shown a multi-story building.

 

It is not stated in the decision precisely what evidence the employers provided, but the ruling, even after a field investigation showed no employer with that name at that address, shows that it could not have been very much.

 

The pitfall for the unwary lies in assuming that simply because your business has never had the alleged name, at the alleged address, and has never heard of or seen the alleged employee means that the Board won’t find you liable. It may very well do so, as it did here.

 

“Unknown” is not a response; it is a default.

 

 

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

 

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

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.


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

Legal Pad vs. iPad, How Workers Comp Claims Handling Has Changed

 

Two Big Changes in Claims Handling
 
20-30 years ago, a claims adjuster used to investigate claims a lot differently than they do today.  Back then, adjusters were given legal pads, a tape recorder, a pen, a company car, and a list of their claims. Some say that the technological trend we live in today has negatively affected the art of investigation for injury claims.  But how?  And what is so different today when compared to 30 years ago?   The answer to this is subject to argument, but there are a lot of clear differences when you compare today’s insurance adjuster to the one of yesteryear.  Here are the pros and cons on the two biggest changes in the way claims are handled below:
 
 
Field adjusters versus in-office claims adjusters
 
Back in the day, adjusters always did in-person statements.  This entailed going to the employer or house of the claimant and taking their statement along with gathering their pertinent information, and putting paper notes in a manila folder which consisted of the actual claim forms and information. [WCx]
Field Adjusters Meet You Face-Face
 
In the past, if you are the adjuster and you are sitting across from the claimant, it could be considered more difficult for the claimant to distort the injury or accident details when recalling what happened. In fact, seeing your claimant in their actual home environment was considered a good way of “sizing them up” when it came to their complaints of injury and how their actual behavior and activities of daily living were affected.  Since you are right there, you can look around the house and see what is actually going on.  Is the house neat and tidy?  Is the claimant wincing in pain or finding it difficult to sit still?  Does your injured worker have dirty fingernails which show they may be doing activities more strenuous than what they are telling their doctor they can do? Do they have a good family support system present to help them in their time of need or to tend to their daily tasks?  The answers to these questions could affect the outcome of the claim, and what the future could hold for where the claim is going to go in the future.
Today Adjusters Work Almost Exclusively by Phone
Today, the role of a field adjuster is about gone.  Some insurance carriers still have field adjusters to do accident investigations and so on, but it is nowhere near the capacity that it used to be.  Claimants can “hide behind their phone” and essentially make any allegation they want, since they do not have to put on an act with their adjuster sitting right there. 
Since the claimant rarely if ever sees their actual adjuster, a personal relationship is really not made, be it positive or negative.  By keeping the adjuster in an office, the carrier eliminated large overhead costs with company vehicles, drive time, mileage, and so on.  This also allows the adjuster to carry a larger caseload.  Since they are chained to the office they are capable of handling a lot more than someone who is on the road.  This again can be seen as a positive or negative.  The point is that the actual in-person investigation that all adjusters used to do is no longer a factor.  Whether or not this is a negative in regards to the actual investigation is tough to prove.  Adjusters nowadays have had hours of training about how to interview, and what verbal and nonverbal cues to pick up on when they are talking to their injured parties.  There is more in-depth training involved now than there used to be years ago, both in investigation tactics and in medical terminology training. So the difference really lies in the adjuster, and how good they are at doing their job.  There were good adjusters and bad adjusters 20 years ago, and there are good adjusters and bad adjusters now. [WCx]
 
 
“Start to Finish” claims handling versus ascending levels of adjusters
 
In the past, adjusters were assigned to certain employers or insurance agencies, and that sole adjuster was the one to handle claims from either of those two parties.  Not only did they get every claim those parties produced, but the adjuster of the past handled those claims from start to finish no matter what the level of severity.  This lead to the adjuster forming a great relationship with those agencies or employers, and several positives came of this relationship. The adjuster knew an employer in and out, toured their facility and knew the job tasks demanded of their workers.  The adjuster knew a lot more about the employer than the injured worker may think they knew. 
Pro of Single Adjuster is Level of Employer Knowledge
If the adjuster knows the job titles, responsibilities, layout of the floor, the risk managers, and the executive staff, then an in-depth relationship is made, and it is hard to put a price on that.  A single adjuster could be saving this employer a lot in insurance expense and premium cost, just by the simple fact that the adjuster knows the employer’s demands and what goes on at this employer on a daily basis.  
Nowadays, it may be considered a luxury if the adjuster that handles your claims is even in the same state as the employer.  Out of state adjusters miss out on local politics, stereotypes of local doctors and clinics, and the overall work ethic of people in one city versus another.  Even more disconcerting, the adjusters start to bounce files to other adjusters in other states depending on the financial exposure or reserves allocated by the carrier. 
Con is Unspecialized Claim Experience
This can be considered a pro or con.  If one adjuster specializes in severe injuries, and you incur a severe injury for a comp claim, then it would make sense that you want that adjuster to handle the file versus the entry-level adjuster who doesn’t have the experience or background in dealing with severe injuries.  But, negative issues can come attached to those carriers who bounce claims around, namely the main issue that this new adjuster has not handled the claim in the very beginning.  A lot can go on early in a claim, and every adjuster has their own style of claims handling in general.  So what if some factors were missed early on that could affect the outcome of the claim?  What if certain questions were not asked that could have affected the compensability of the claim, had they been asked the day after the injury versus being asked months later? 
This is what can frustrates claimants the most.  Just when they get comfortable and start to trust the first adjuster, their file is moved to another adjuster.  They have to essentially repeat the whole process over again, possibly including taking another statement and trying to form another relationship with this new adjuster.  Maybe this new adjuster doesn’t return calls as quickly as the first adjuster.  Maybe the new adjuster is not as verbose as the first adjuster, and the claimant feels that this new adjuster is not paying them the attention they feel they were paid before.  Whatever the case may be, there are again pros and cons to each argument about which way is best.
Summary
These two issues have only scratched the surface between how claims are handled now versus how they were handled 20-30 years ago.  Which way is better is best left up to the parties having this discussion. As you can see, even with these two changes, it can open the door to hours of discussion.  The fact is that it is 2012, and with the technological advances that have been made, both in the insurance industry and in industry in general, we have to adapt to these changes and provide what we think will be the best info to help the adjuster make the proper decisions handing their claims. 
Let’s face it, claims are not going anywhere.  How we handle those claims is a constantly changing atmosphere, and you have to adapt to change.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

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

 


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

 

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

Missouri Workers Compensation Law Overview

Requirements
In Missouri, every employer, not in the construction industry, who has five or more employees, whether full time or part time, is required to carry workers compensation insurance. Employers with less than 5 employees may elect to purchase workers compensation. Employers with less than 5 employees and without workers compensation insurance are subject to tort claims from employees who are injured on the job. Employers in the construction industry must provide workers compensation coverage if they have even one employee. Certain employers are exempt from the requirement of having workers compensation insurance coverage. This includes employers of farm labor, domestic servants in a private home, occasional labor performed for a private household, qualified real estate agents and volunteers of a tax-exempt organization. Family members working in the business must be covered unless they elect to opt out.

 

 

Obtaining Coverage

To obtain workers compensation coverage in Missouri, the employer has only two options which are:

 

  1. Purchasing a workers compensation insurance policy from an insurance company licensed to do business in Missouri.
    2.  Obtaining approval from the Missouri Department of Labor and Industrial Relations, Division of Workers Compensation to provide self-insurance. (WCxKit)

 

 

Claim Reporting

The employee must report the injury to the employer within 30 days in writing providing details of where, when and how the accident occurred. The employer must then report the injury to the insurance company or third party administrator within 5 days. The claims office is responsible for reporting the claim to the Missouri Division of Workers Compensation within 30 days of being notified of the injury.

 

 

Medical Benefits

The employer selects the medical provider. The employer must provide “medical, surgical, chiropractic, and hospital treatment; including nursing, custodial, ambulance and medicines”. For medical coverage to be provided, the accident must be the prevailing factor in causing the resulting medical condition.

 

 

There are no time limitations or monetary limitations on medical care. The medical care will continue as long as the physician deems it necessary. Mileage to and from medical treatment is reimbursed at the rate of $0.50 per mile.

 

 

Temporary Total Disability Benefits

The temporary total disability (TTD) benefits are calculated as two-thirds of the employee’s average weekly wage to the injury. The TTD weekly maximum and minimum is adjusted each year on July 1st. The maximum is capped at $811.73 for injuries occurring from July 1, 2011 to June 30, 2012. The weekly minimum TTD amount is $40.00. TTD benefits can be paid for a maximum of 400 weeks.

 

 

The first 3 days of disability (the waiting period) is not paid to the injured employee unless the employee is disabled for more than 14 days.

 

 

Temporary Partial Disability Benefits

In Missouri, if the employee is able to return to work, but at a lesser rate of pay than the amount the employee was earning prior to the injury or can only work fewer hours, the employee is entitled to temporary partial disability (TPD) benefits. The TPD benefits are paid at two-thirds of the difference between the pre-injury wage and the post-injury wage, but is subject to the maximum TTD rate.

 

 

Permanent Partial Disability Benefits

Missouri employees who incur a permanent partial disability (PPD) are entitled to two-thirds of their average weekly wage, not to exceed a per week maximum.  The weekly maximum is adjusted each year. The weekly maximum PPD rate for the period of 7-1-11 thru 6-30-12 is $425.19 per week.   For non-scheduled injuries, known as Permanent Partial General Disability, the maximum period of payments is 400 weeks. For scheduled injuries, the loss of a body part has a maximum of 232 weeks of benefits for an arm at the shoulder, with the number of weeks declining based on the nature of the body part, down to 14 weeks of benefits for a toe other than the great toe.

 

 

Permanent Total Disability Benefits

Permanent total disability (PTD) benefits are paid weekly for life-time of the injured employee. The employee and the insurer are also allowed to negotiate a lump-sum settlement. The weekly benefits are based on two-thirds of the average weekly wage not to exceed the maximum cap set each year. (WCxKit)

 

 

Death Benefits

The burial expenses in Missouri are covered for a work-related death up to $5,000. The death benefits for a surviving spouse and dependents follow the same guidelines as TTD benefits – two-thirds of the average weekly wage – for one year. The spouse loses the death benefit if the spouse remarries, but the children continue to receive the death benefit. Children can receive the death benefit if they are under 18 years old, or 22 years old if enrolled in accredited educational institution.


Author Rebecca Shafer
, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing, publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.


Our WORKERS COMP BOOK:  www.WCManual.com

 

 

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

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SUBSCRIBE:  Workers Comp Resource Center Newsletter

 

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

 

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

 

4 Additional Ways to Reduce Claim Exposure During Business Peak Times

No matter what season whether it is winter, spring, summer, or fall, it is some company's “busy” or peak season somewhere. Unfortunately for niche businesses, this peak time can also be a prime time for workers compensation injuries.  
 

New staff is hired to meet the upcoming demands, and the company employees are working longer hours to meet the demand. The equipment begins to require more maintenance and repair during this “busy” period. It is imperative not to forget about workplace safety during this time. Here we discuss a few ways to curb the exposure to injuries.
 
 
1. Solid hiring practices
When demand is high for the work product, it is easy to forget focusing on important aspects of the business. The peak time of year means hiring new full time and part time employees. These employees may be referrals from other employees or simply walk in with little to no experience. 
 
 
Evaluating the job candidates is critical. On average, first-year employees have a higher incidence of injuries than more experienced or tenured employees. This may sound obvious, but hiring practices are key in preventing workers compensation injuries. Workplace safety must be part of the screening process as well as physicals and drug screens prior to hiring. Monitor the potential employee’s attitude toward safety during the interview process and while touring the workplace. The way the employee behaves during this time could be a sign of carelessness that could lead to a workplace injury. (WCxKit) One company had 80% of injuries occuring to employees with less than one year's tenure.
 
 
2. Proper orientation and safety training
Safety comes first and the facility should maintain safety at all times of the year. Focusing on safety only during a peak time is ineffective and potentially hazardous. Protocol for repairs, maintenance, and inspections should happen consistently throughout the year.
 
 
Employees should be reminded about safe work practices and be trained in proper safety techniques. Emergency procedures, safe work practices, protective equipment are key to preventing injuries during the peak time and anytime of the year. Mock injury set ups can be educational and reveal how employees will respond in an emergency situation. Having a plan in place will help employees know how to respond properly and effectively should an injury occur.
 
 
3. Proactive and involved supervision
Supervising and enforcing safe work practices is a key component to reducing the risk of injuries. Every employee is responsible to work safely, even if it is not the easiest and fastest way. Managers and supervisors onsite should be aware of an employee's every move. Operational guidelines such as proper guards for saws and safety glasses are crucial. If a supervisor catches an employee working unsafely, the employee must be disciplined. Employees will only take safety seriously, if there are serious and automatic consequences. 
 
 
The employee should be allowed to provide feedback keeping the lines of communication open. Employees are not prisoners, and employees most likely has ideas on how to change workstations to increase safety standards. Providing incentives like raffles for free gas cards is an easy option. A supervisor can implement a new safety technique and the results will travel to senior level management. By giving the employee a chance to weigh in, work safety techniques will be more successful overall.
 
 
4. Super fast accident response
As mentioned above, employees must understand what to do should an accident occur. If an employee using a saw cuts a hand and tells a supervisor about the accident, the supervisor will then tell the HR person and take the employee to receive medical care. The first report of injury is completed and called in to the insurance  carrier. The employee returns to the shop bringing the medical slip to the HR person, who then faxes or emails the adjuster. Within 24 hours, the adjuster already has the injury report, statements from the supervisor and HR, and the medical slip. These items are crucial to a claim being handled properly after an accident.
 
 
This example may sound like workers compensation 101, but it is surprising how many employers do not stick to this process.   Having a proper procedure in place following an injury prevents a delay. And any delay affects wage payments, medical coverage, and a return to work. Take time to have a step by step process and mock injuries, so that when an actual injury occurs, everyone knows exactly what to do. (WCxKit)
 
 
Summary
Peak work seasons elevate the exposure on many levels. With proper hiring practices, solid orientation, thorough training, proactive supervision, and fast accident response, and reporting everyone knows how to respond to an injury in the workplace. It sounds simple, but practice makes perfect. Do not wait until an injury happens to figure out how to handle it.  


Author Rebecca Shafer
, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing, publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.
 


Our WORKERS COMP BOOK: 
www.wcmanual.com

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

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

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

 

 

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

 

 

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

 

 

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

 

 

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

 

Ten things the adjuster failed to do:

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 


Author Rebecca Shafer
, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

 


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

 

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

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

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

SUBSCRIBE: Workers Comp Resource Center Newsletter

 

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

 

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

 

Five Questionable Workers Compensation Injuries

You are at work. An accident happens. So, you qualify for workers compensation coverage, right? Compensating workplace injuries is why the employer pays for coverage – right? Not so fast, it's not that easy.
 
 
Sometimes, the answer is “sometimes.” There is a big difference between an injury happening at work, and the injury being “work-related.” The golden rule is: the injury has to “occur within the course and scope of employment”  and "arose out of the circumstances of employment." Of course, each jurisdiction states the law slightly differently, so check state law. For more information: Is the injury compensable.
 
 
Here are five common examples of questionable compensable “workplace” injuries.
 
Note: Coverage can vary by jurisdiction. Always check with your adjuster for any scenarios applicable to your particular workers compensation cases.
 
 
Example #1: I hurt my back lifting a box.
Back injuries may be the most common of workers compensation claims. An employee, doing normal work duties, feels back pain. Is it covered? Ask these questions:
 
1.      Was the worker doing normal job duties?
2.      Was the injury witnessed?
3.      Is this an isolated incident?
4.      Did the pain start off slowly, then worsen over time or was it more acute in nature?
5.      Was it reported promptly and to the proper person?
6.      Does the worker have prior back injury claims or prior surgery to the affected area?
 
The employer may be on the hook for accepting this claim as a strain. However, if later the worker needs surgical intervention to repair ongoing pain, then the claim may be disputed. Reporting the claim late and/or not receiving treatment right away can affect the compensability of the claim. The importance of prompt injury reporting and proper medical treatment can mean the difference between a “back injury” claim being accepted or denied.
 
 
Example #2: My shoulder hurts from doing my normal repetitive job duties.
Repetitive job injuries are quite common. The same employee comes to work day after day, doing the same job on the same machine for months, maybe years. But whether the job actually caused the injury is the main question. Some states are much more restrictive allowing repetitive injuries than others — so check state law!
 
 
If the worker reports a repetitive job injury, and an MRI later shows all kinds of arthritis in the shoulder, then this claim may not be accepted. Unless the worker can prove the job duties led to an aggravation of the pre-existing degenerative conditions, the claim may not be covered. The employer may be on the hook for a temporary strain or exacerbation, but once a surgical repair is recommended, this claim could be denied by an IME physician.
 
 
Everyone has a different degree of ongoing arthritic issues in their bodies. There are 25-year-old workers with shoulders looking like they have been through the mill. And there are 65-year-old workers with perfectly healthy shoulders. It all depends on genetics, the job being done, and for how long. The physician must be able to differentiate between what is a pre-existing degenerative arthritic condition, and what damage is specifically related to the job tasks.
 
 
Example #3: I slipped on water on the floor and twisted my knee, but I don’t need medical treatment.
Watch out for these claims. Some workers do not run to the doctor for every little ache and pain. Some are afraid to miss work for financial reasons. Some are afraid to report a claim because they are afraid of being laid off or moved to another job classification.
 
 
The most important thing for the employer to do in these cases is to document the incident internally. Workers must know it is “okay” to report an incident, but if they don’t go to the clinic for treatment they run the risk of their claim being disputed down the road.
 
 
The workers comp motto for claims adjusters is:  “Workers injured at work go for medical treatment because they are injured.” The reality is some people do not want to get treatment at the time of the injury. They may have heard the workers comp clinic has bad service; or they have to wait for 3 hours before being seen. These issues are detrimental to the claims adjuster, since a worker may have a legitimate injury but due to these outside factors does not get treatment at once. Failure of the worker to get medical care does not mean the worker is not hurt. It means delays in medical treatment complicate the claim down the road potentially leading to a denial.
 
 
Example #4: I was injured in a car accident while driving a work vehicle.
Auto accidents in employer vehicles can be tricky. Every state has its own rules when it comes to these types of accidents. Just because a worker is driving a company vehicle does not mean the claim is automatically accepted. A thorough investigation is required. Questions to ask include:
 
1.      What was the worker doing at the time of the accident? Think distracted driving.
2.      Where was the worker heading when the accident occurred?
3.      What were the worker’s exact job tasks while in the company vehicle?
4.      Who was at fault at the time of the injury?
5.      Was there a police report?
6.      Did the worker get medical treatment at a hospital?
7.      Was a drug/alcohol test done at the hospital?
 
 
The answers to these and others questions determine if the claim is accepted or not. Sure, if you are on the way to a job site and an accident occurs, you may be entitled to some benefits but there is no guarantee.
 
 
Example #5: I was horsing around with another employee when I fell and injured my hand.
Believe it or not, some states actually cover a degree of “horseplay.” The hard part for the adjuster is determining the degree of horsing around that will lead to the claim being accepted or rejected. Typically, it is common practice for the adjuster to deny this type of claim, but not always. Statutes involving horseplay are usually vague, and open to interpretation. The employer needs to do a detailed investigation involving all parties, and the adjuster should take statements as well to see if they match up. After the investigation, consult an attorney to see if the horseplay act causing the injury would be covered.
 
 
Summary
Just because you suffer an injury at work does not mean you have automatic coverage under the Workers Compensation Act. Every scenario is unique, and most injury details are not the same. The employer plays a very important role in the initial investigation of all claims, and the more details provided to the adjuster, the better decision the adjuster can make as to claim compensability – or not.
 
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.

Shooting Blanks Can Be Deadly For Employer and All Bystanders

Nearly all problems on a workers comp claim are traceable to the first report of injury (FROI). The first report (C-2 in NY) is one of two or three documents starting a claim. Other forms are the worker’s application for benefits (C-3 in NY) or an initial medical report sent to the workers compensation board.
 
 
However, the employer’s first report of injure (C-2) is determines, more than anything else, what the future course of the claim will be like, such as:
 

1.     Will there be, literally, a dozen or more unnecessary hearings?

2.     Will there be a trial over non-existent defenses?

3.     Will real defenses go unnoticed until far too late, or never be noticed at all?

4.     Will reserves be unnecessarily high?

5.     Will proper payments be too late? (WCxKit)

6.     Will the wrong witnesses be called on the wrong issues?

 
If these questions sound like unchecked chaos, it is really very close to an average performance than it is to a rare failure. Why?
 
 
Persons routinely review first reports coming in from a variety of employers know the answer: blank boxes. Or boxes marked “unknown” in answer to relevant questions. Questions an employer, with a bit of diligence, can answer; or explain why an answer is not possible.
 
 
The remedy to the above is a phone call and a document. The person required to complete the first report of injury is a witness to the incident and does not have the necessary knowledge to answer all, or even most, of the questions on a first report. If the person is a witness, usually a foreman, it’s unlikely answers to such questions as the workers compensation insurance policy number, date of coverage, etc., are known.
 
 
As a result, pressure to get a report, any report, in quickly inevitably leads to the deadly barrage of blanks. In time, the blanks metamorphose into land mines exploding unexpectedly at hearings months or years in the future.
 
 
The first measure to take when blank boxes are encountered is a phone call. People able to provide quick answers to transform the blank box into a source of useful information are within the sound range of a ringing telephone. Therefore, make the correct phone ring and get the answer.
 
 
The second measure involves some pieces of paper and a stapler. The first report of injury form may have nearly sixty boxes to complete, with little space for complicated answers. Therefore, let documents answer the questions and, to assure their presence, staple them to the report form. And put the best of all answers — “see attached”— into the appropriate box.
 
 
Be pro-active about dissemination of information. Send a copy to the carrier, of course, but also to the workers compensation board, the worker and the worker’s attorney. Sooner or later, all will need the information so make it sooner. (WCxKit)
 
 
Documents have certain advantages over witnesses, the chief being that they never change their stories. Share them with others. Ask Ted who should be copied on these documents – you'd be suprised.
 
Remember, if the employer leaves boxes blank the worker’s attorney will be happy to volunteer the answers and it’s rare the employer will agree with those conclusions.
 
 
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York and an expert in providing training to employers in basic reporting and investigation of workers compensation claims. His NY FROI Training Program and Coaching can help employers do it right the first time. He also is a frequent writer and speaker, and has represented employers in the areas of workers compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
 
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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.

Time Limits on Filing Workers Compensation Claims for Employees and Employers

We often hear the question: How long do we have to file a workers compensation claim?   The answer depends on whether you are an employer or an employee.   While the time requirements vary from state to state, the time restraints for the employer to file a workers' compensation report are almost always more restrictive than the time limits are for the employee.

For the Employer:

While the employer
is technically responsible for reporting the work comp claim to the state workers' compensation board, work comp insurers often perform this function for the employers. A few states insist the employer report the claim, but most states just the want the claim reported timely and do not care who sends in the claim.  (WcxKit)

The claim
is normally reported on a form called the Employers First Report of Injury, also known as the E1 in some states. When the employer reports the claim to the insurance company, the insurer has the experienced adjusters who know the state requirements for the information required on the Employers First Report of Injury. In the states that require supplement updates, the claims office always will file the additional reports with the state work comp board.

California
requires serious injury and death claims to be reported immediately to the Division of Workers' Compensation.   Colorado also requires death claims to be reported immediately. Michigan requires death claims, disabilities of 7 days or more and some specific losses to be reported immediately. [No explanation as to how the employers will know immediately the employee will be off work 7 days in the future on minor indemnity claims]. Washington state also requires immediate reporting of death claims and claims involving hospitalization.

Most states
give an overall time limit on when the employer must have the Employer First Report of Injury filed with the state. Generally, the time limits vary from 2 days to 15 days. However, a few states give the employer more leeway in reporting the claims. In Georgia, the employer has 21 days to report the claim to the state, while Kansas gives the employer 28 days to report the claim. Missouri gives the employer the most time to report the claim, 30 days. 

While a few states
(Alabama, Arizona, Colorado, Michigan, North Dakota and West Virginia) do not impose any penalty on the employer for failing to report the claim, most states have the option of imposing a fine on the employer for late reporting. Texas requires indemnity claims to be reported within 8 days. If not, the Texas Division of Workers' Compensation can fine the employer up to $25,000 per day, per offense. [That would only happen to the employer who intentionally and repeatedly failed to report work related injuries]. (WcxKitz)

The maximum fine
that can be imposed on the employer for late reporting varies by states. Arkansas has a really strict penalty for not reporting the claim within its 10-day time limit – a $10,000 fine and it is classified as a Class D Felony which can involve imprisonment for the employer!   Hawaii, Virginia and Vermont have a maximum fine of $5,000, but no imprisonment. New York and New Hampshire have a maximum fine of $2,500 for late reporting. All the other states have fines of $100 to $1,000.  

For the Employee:

While the employee
has more latitude in when to file a work comp claim, the employee also has more to gain by filing the claim timely. The employee cannot collect indemnity benefits until the claim is reported. 

A few states
including Arizona, Arkansas, Connecticut, Hawaii, Washington and West Virginia require the employee to give notice of the claim to the employer “forthwith” or immediately, without delay. However, each of these states give the employee a free pass on the requirement to notify the employer if they have an excusable reason.

Most states
have time frames for notifying the employer that vary from 2 days to 30 days, with longer “excusable” times being permitted.   Excusable events vary by state, but in reality few insurers ever try to deny a claim because it was not reported timely. Some states require the claim to be in writing to the employer, while other states do not specify the means of reporting the claim to the employer. 

Delaware
gives the employee up to 90 days to report the claim, after which no compensation is due until the employee does notify the employer. [This doesn't make much sense, as the employer will notice well before the 90th day the employee is not at work. If the employee is at work, then indemnity benefits would not be owed]. 

Iowa
gives the employee 90 days to report the claim to the employer, unless the employer already knows about the injury. Louisiana gives the employee 30 days to notify the employer, unless the employer has not posted the work comp reporting requirements per state law, then the employee has one year to report the claim to the employer. Utah gives the employee a straight 180 days without qualifications. (WcxKit)

If you
are an employer – it is absolutely to your advantage to report the claim as soon as possible to the insurer, or the state if the state will not accept the E1 from the insurer. The sooner you report the claim, the quicker the adjuster will be able to start the claim investigation, and the sooner necessary services and benefits can start to flow.   If you are the employee – the sooner you report the claim to the employer, the sooner your benefits will start.
 

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.
C
ontact:  RShafer@ReduceYourWorkersComp.com or 860-553-6604.
 
 
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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.
 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Is Mold in the Workplace Dangerous

A group of employees for a car dealership in San Diego has taken the fight over mold in the workplace to a new level. In August, 2010 the five employees who had all previously submitted workers' compensation claims for mold related illnesses, filed criminal fraud charges against the dealership, the owners of the dealership and the insurance carrier due to the denial of their work comp claims. The group has accused the employer, the workers' compensation insurer, the insurer's legal counsel and the medical providers in engaging in a criminal scheme to deny them workers' compensation benefits.
 
In the 1990's enterprising lawyers and willing complainants starting bringing mold related lawsuits against property insurers for people who alleged injury due to exposure to mold. By 2003, almost all property insurers had mold exclusions in their policy that excluded coverage for mold. Mold, as a source of income for attorney, declined sharply. Now, mold is making a comeback of sorts, as lawyers look to make work comp claims based on exposure to mold. (WCxKit)
 
The employees and their attorneys who pursue a workers' compensation claim for mold have two hurdles to overcome. First, there extensive debate in the medical community as to the type and extent of injuries caused by mold. For every doctor who is willing to testify that mold is the cause of a person's medical problems, there is another doctor who is willing to testify that mold is not the cause of the medical problems. Second, proving the illness was caused by exposure to mold in the workplace, as opposed to exposure to mold in the home or elsewhere creates an obstacle for the attorneys of the employees. They have to deal with proving a cause and effect relationship between the job and the employee.
 
Mold is not one specific organism. Mold is a fungus with approximately 1,000 different species of mold in the United States. Mold can grow just about anywhere as long as there is moisture, oxygen and an organic source for food. While most people think of mold growing on the wood framing of a house or building, it can grow on paper, carpet, drywall, insulation, ceiling tile and even on dust and dirt. Mold produces very tiny spores that float through the air until they land on a new surface. If the new surface is stays wet for 48 hours, the mold will begin to grow.
 
While the scientific debate continues on the extent of injury mold can cause to a person. There are some definite known facts about human exposure to mold.  The most common medical issue is an allergic reaction to the mold with hay-fever type symptoms including a runny nose and reddens eyes. The onset of the allergic reaction to mold can be immediate, but a delayed response happens as well. Asthma attacks happen to some individuals who are allergic to mold. This also causes irritation to the nose and eyes, plus irritates the throat and skin in some people. 
 
The most serious medical conditions caused by mold is in people with an impaired immunity system, uncontrolled diabetes, AIDS or who are taking immune suppression drugs for a medical condition.   In these people the mold can skin infections and mucosal infections, but mold does not normally cause systemic infections in humans. 
 
Therefore, unless the employee has a prior medical condition that makes them a high risk when exposed to mold, most employee illness claims related to mold exposure should be minor. That does not prevent an enterprising attorney taking an employee with the sniffles and sending them to their handpicked “world renown” mold doctor who declares the employee to be permanently totally disabled.
 
The best way to protect you as an employer from a workers' compensation claim for mold is to prevent the mold in the first place. Mold needs moisture or high humidity to grow. Be depriving mold of moisture you can prevent its growth. Steps you can take to stop mold in the workplace include:
1.      Repair all roof leaks promptly
2.      Repair all plumbing leaks promptly
3.      Maintain indoor relative humidity between 25% and 60%
4.      Keep air conditioner drip pans clean and flowing freely
5.      Prevent indoor condensation by increase surface temperatures or by reducing the amount of moisture in the air with the use of a dehumidifier
6.      Properly vent bathroom and kitchen areas
7.      Vent dryers and other moisture generating equipment to the outside
8.      Provide proper drainage around the building
 
If you do discover mold in the workplace, eliminate the source of the moisture. After the source of moisture or water is eliminated, remove the moldy building materials from the premise. Note: the more you disturb the mold, the more mold spores you will release into the air. After the repairs are complete, you will want to thoroughly clean and vacuum the area to remove the remaining mold spores. Do not run your HVAC system during the repair process, as the HVAC system could spread the mold spores throughout your building. If you have a serious mold problem, consult the EPA's publication “Mold Remediation in Schools and Commercial Buildings”. (WCxKit)
 
Protecting your employees from exposure of mold in the workplace is the right thing to do. Even if your workers' compensation insurer denies a mold illness based work comp claim, your group medical insurer will pick up the cost, plus you still lose the employee's productivity while the employee is out of work due to the mold related illness. 

 

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.
Contact: 
RShafer@ReduceYourWorkersComp.com or 860-553-6604.

 
WORK COMP CALCULATOR:   http://www.LowerWC.com/calculator.php
 
WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/
SUBSCRIBE: 
Workers Comp Resource Center Newsletter

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

©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
Info@ReduceYourWorkersComp.com.

Claim Intake – The Modern Way

In a recent claim file audit, the auditor was aghast to see a workers compensation claim recently reported on an Acord Form for workers compensation. It had probably been 20 years since the last time the auditor saw a paper report of a workers comp claim being mailed into the claims office. (The Acord Form paper was yellow with age, so the form was at least 20 years old). A small town had properly reported their workers comp claim to the municipal pool but their method of claim reporting was definitely outdated. 
I had the opportunity to visit a "Call Center" recently, and it was very enlightening. There was a well-organized, huge room with rows of open-faced cubiles with a "Command Center" at the front of the room. The "Commander" kept the pace of the intake evenly spread across all coordinators. There was  "score board" at the front of the room displaying how many calls are active, how many are waiting, and the average wait time (2 seconds). I highly recommend you visit the intake center for your TPA or carrier. All faxes were automatically converted to email, and put into the queue for almost immediate distribution. It looked like phone calls, faxes, internet submissions and email were all handled within 5 minutes.
There are several ways the employer can report the new workers comp claim to the claims office.
 The primary modes are:

1.       Internet report form

2.       E-mail reporting

3.       Fax reporting

4.       Telephone reporting

5.       Postal Service mail

Internet Reporting
Most insurers and third party administrators (TPA) are promoting the use of the internet to report claims. The goal is to make the reporting of the claim as simple, easy and fast as possible for the employer. The insurer and the TPAs know the sooner the claim is reported, the better the chances of a successful outcome on the claim. The internet report is a fill-in-the-blank format the employer completes. (WCxKit)
The benefits of the internet report is the insurer's or TPAs' computer can download the information direct into the claims management computer system saving the insurer or TPA the clerical time of entering the data, plus it eliminates data input errors on their end.
E-Mail Reporting
The  transfer of information by e-mail allows the insured/employer to utilize their own form and to send it as an e-mail attachment.   While the information is transferred as fast as internet reporting, it is necessary for a clerical person in the claims office to print the report and type the information into the claims management system. Some insurers and TPAs are providing the employers with a copy of their internet report format for emailing. This still allows the insurers and TPAs to transfer the information directly into the claims management system without using the services of clerical staff.
Fax Reporting
Twenty-five to thirty years ago fax reporting of the workers comp claims replaced mail reporting of workers comp claims. It allowed the employer to get the claims report to the claims office in a minimal amount of time. The claims office staff would then take the claims report and manually enter all the information into the claims management computer system.
Telephone Reporting
Telephone reporting requires the employer to call the claims office and give each line of information to the claims' office personnel who either write it down on a paper claim reporting form or enter it directly into their claim management computer system. 
Telephone reporting is still often used in emergency situations and when accidents occur during evening or night hours when the claims office is not open. The insurers and TPAs have a call-center to accept telephone reports on a 24/7/365 basis. The process is still the same with the claims office inputting all the information into the claims management computer system. 
If you will have situations where the workers comp claim needs to be reported immediately by telephone, the following is some of the information your personnel should have handy when calling in a telephone report of a workers comp claim:
1.     Workers comp policy number and effective dates.
2.     Employer's name and address plus location code or department number or any other internal means of identifying used by the employer.
3.     Employee's name, age, sex, address, e-mail address, telephone numbers and social security number.
4.     Date, time, and description of the accident.
5.     Witnesses' names and contact information.
6.     Type of injury and body part.

7.       Name, address and phone number of medical provider.

8.       Information on whether or not the employee has returned to work or has a return to work date in the near future.

9.       Wage or salary information on the employee.

Mail Reporting
Mail reporting has almost been totally eliminated by telephones, fax machines and computers. It entails the employer completing a workers compensation claims report and mailing it to the claims office, where the clerical staff of the claims office enters the information into the claims management system. The problem with the insured reporting the claim by mail is the additional time it takes for the claim report form to travel through the mail, then to be opened, date stamped and the information entered into the computer system. (WCxKit)
Legalities
Most states now require the employer to keep a record of all workers comp claims. A few states have placed time restrictions on how long the employer can take to report a claim. Some of the states require a copy of the workers comp claim report to be filed with their workers compensation board or industrial commission. All states impose penalties on employers who fail to report workers comp claims. A few states have started requiring all claim reports be on their own state First Report of Injury Form. The insurers and TPAs are adapting their computer systems to accept the First Report of Injury Forms via the internet and e-mail.
Summary
Regardless of the mode the claim is reported, it is essential for the claim to be reported as fast as possible following the accident. Various studies show the shorter the time between the moment of the accident and the claims adjuster contacting the employee, the better the overall outcome of the claim.
  \ 
Author Rebecca Shafer,
 J.D., 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.  Contact: Info@ReduceYourWorkersComp.com  or 860-553-6604.
  
 
WC Books:  
http://www.LowerWC.com/workers-comp-books-manuals.php
WC Calculator:  http://www.LowerWC.com/calculator.php
TD Calculator:  http://www.LowerWC.com/transitional-duty-cost-calculator.php 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
  
©2010 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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