Nothing in this article is intended as legal advice. Seek the assistance of an attorney in drafting your next TPA contract. This article is based on hypothetical situations.
The self-insured employer was livid. In the self-insured employer’s eyes, the third-party administrator (TPA), who had handled their workers compensation claim files for three years, had not lived up to promises made when discussing the claims handling contract. The self-insured employer remembered the TPA had promised “excellent claim service” and “cost control,” but the self-insured employer had to deal with inquiries from the Workers Compensation Board, complaints from unpaid medical providers, and their average claim cost was up almost 50 percent in just three years.
The self-insured employer wanted to sue the TPA for breach of contract. The attorney the self-insured employer consulted with had a different idea. Instead of suing for a breach of contract, the attorney recommended a lawsuit for the TPA’s breach of their fiduciary responsibilities.
Why? The relationship between a self-insured employer and a TPA of claims is one of trust and faith. The self-insured employer relies on the TPA to act in every instance in a manner that is in the best interest of the self-insured employer. In this case, the self-insured employer was relying on and trusting the TPA to handle their workers compensation claims with the same due diligence and professionalism they would expect from a workers compensation insurance company. As the self-insured employer was paying the TPA to handle the self-insured employer’s financial obligations (the payment of workers compensation claims) and trusting the TPA to handle their assets (their money) in a prudent and careful manner, a fiduciary relationship was established between the self-insured employer and the TPA.
The self-insured employer relied on the TPA’s superior workers compensation claims knowledge and claims handling skills in the management of the self-insured employer’s workers compensation claims program. The self-insured employer relied on the TPA to put the interest of the self-insured employer ahead of the TPA own interest in every claims handling decision made.
The TPA is in the business of adjusting insurance claims. The self-insured employer is in the business of manufacturing plastics. Therefore, the TPA’s knowledge and understanding of workers compensation claims is far superior to that of the self-insure employer. The TPA was being compensated to provide the self-insured employer with claims handling, guidance, counseling and advice on their workers compensation claims. At any point where the TPA saw the self-insured employer making an incorrect decision on a workers compensation claim, the TPA had both a duty and the responsibility of a fiduciary to explain both the ramifications and the probable outcome of an incorrect claims handling decision. The self-insured employer was of the opinion the TPA had repeatedly failed to provide proper guidance.
The self-insured employer was trusting the TPA to handle the self-insured employer’s workers compensation claims in accordance with generally accepted standards (commonly known as best practices) within the insurance industry. The original contract between the self-insured employer and the TPA was silent on the subject of claim quality. Best practices for claims handling had not been incorporated into the contract. The purpose of best practices is to control claim costs while providing the insured/self insured with a quality claims product. Each time the TPA adjuster, claims supervisor or claims manager failed to follow the generally accepted claims handling standards, they were breaching their fiduciary responsibility to the self-insured employer, but not their contractual requirements.
The original contract between the self-insured employer and the TPA also had not specified the number of claim files each adjuster would be assigned. The adjusters at the TPA were handling an average of 180 workers compensation files each. This number of claims is far above what a claims adjuster can properly handle. The TPA knew or definitely should have known a claims inventory/workload of this size was unrealistic and generally accepted claims handling standards could not be met. Each time the claims supervisor or claims manager assigned a new workers compensation claim to the claims adjuster with a claims inventory of 180 files, the TPA was intentionally breaching their fiduciary responsibility to the self-insured employer.
Any time a self-insured employer and a TPA enter into a claims handling agreement, the self-insured employer should be sure the contract specifies it is a fiduciary agreement. The contract should incorporate the best practices in claims handling. The contract should specify the number of claims files that can be assigned to any one adjuster. The contract should also specify how any damages the self-insured employer incurs due to the TPA’s breach of fiduciary responsibilities will be resolved.
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.
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