Rebecca Shafer, J.D. - 2/77 - Work Comp Roundup

Proper Claim Management Requires a Strategic Plan of Action

August 15, 2018 by Rebecca Shafer, J.D.

Keeping track of everything the workers’ compensation adjuster needs to do is not easy! Every adjuster will have numerous claims, and each claim will have many things that need to be accomplished to move the claim forward. Proper claim management recognizes the difficulty and the enormity of the task of trying to move all the claims forward at the same time. There are often conflicting demands on the adjuster’s time and resources.

Best Practices Call for a Strategic Plan of Action

To alleviate the burden of keeping track of everything that needs to be done, the insurer’s/ self-insured’s Best Practices provide the adjuster with a roadmap to what needs to be completed. Even then, it is still a challenge to accomplish everything that needs to be done on each claim file. To prioritize the adjuster’s work on each file and to obtain the proper resolution of the claim, Best Practices call for a strategic plan of action.

When an adjuster receives a new claim, Best Practices will require the adjuster to verify coverage; contact the employer, employee and medical provider; and set the initial file reserve all within the first 24 hours of the claim. Once these must-do items are completed on the new claim, the adjuster will review the facts developed and create the initial strategic action plan for the future actions to be completed on the file.

Initial Strategic Action Plan

The initial strategic action plan should contain both the activity to be accomplished and the date it will be accomplished. The action plan can be included in the adjuster’s file notes, or it can be a stand-alone document. The activities to be included in the initial strategic action plan can include:

The next contact with the employee to learn the employee’s medical status, work restrictions and return to work status and a date for completion of this activity

Verification of the receipt of the initial medical report and work restrictions, if any, and a date to complete this activity

The next contact with the employer to establish the availability of modified light duty within the employee’s work restrictions and date to complete this activity

Verification of the receipt of the documentation of the average weekly wage and the date it is to be completed

Completion of any remaining investigation (Best Practices normally dictate the completion of the investigation within 14 days of the claim being reported) and the date the investigation is to be completed

A determination to accept compensability or to deny the claim, and the date the decision must be made

Issuance of the first temporary total disability benefits check and the date it must be completed

Placing a third party on notice of subrogation and the expected completion date

The ISO filing and the date it is to be completed.

The filing of all state forms and the date(s) each form is due

If the claim is reportable to an insurer, excess insurer or any other party, the completion of the report and the date the report is due

The date for the next strategic plan of action (normally 30 days after the first strategic action plan, but the time frame can be longer or shorter depending on the facts and circumstances of the claim)

The strategic plan of action is not static, but constantly evolving. As activities are completed, and additional information is obtained, a new strategic action plan is developed. Over the course of the claim, the one claim file can include numerous strategic action plans. Normally, by the time the second strategic action plan is created, the activities in the initial strategic action plan have been concluded. If there are activities in the first strategic action plan that the adjuster could not accomplish, for any reason, the activities are carried over to the second strategic action plan. This is true for all future strategic action plans with any incomplete activity being carried over to the next strategic action plan. This prevents needed activities from being missed.

Subsequent Strategic Action Plans

Subsequent strategic plans of action after the first action plan will include new steps/activities that need to be taken to move the file forward. These activities and their due dates can include:

Reevaluation of the file reserves

Evaluation of the need for a nurse case manager on the claim, if one is not already assigned

Coordination of return to work full duty or restricted duty

Obtaining and evaluating medical reports of the on-going medical treatment

Regular and on-going follow-ups with the employee, employer and medical provider

Obtaining and evaluating the disability rating

Subsequent reports to insurers, self-insurers or other parties

Subsequent ISO filings

Completion of any additional state forms

Scheduling and obtaining a peer review or independent medical examination

A litigation plan and litigation budget if defense counsel have to be involved

Settlement evaluation, including both the strengths and weaknesses of the proposed settlement

Notification to Centers for Medicare and Medicaid Services if a Medicare Set-Aside Arrangement is needed

Settlement of the claim

Obtaining all required waivers and/or releases

The strategic plans of action keep the adjuster focused on moving the claim to a conclusion. By using the strategic action plan to accomplish all needed activities on the file in a timely manner, the adjuster obtains the best possible outcome for both the injured employee and the employer.

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 co-author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Claim Management

19 Points to Cover in a Proper Workers’ Comp Claim Investigation

August 1, 2018 by Rebecca Shafer, J.D.

A claims auditor was brought in because a self-insured employer was seeing an acceleration of the average workers’ compensation claim cost. The employer was dismayed to know that, in comparison with other employers in their industry, they were paying nearly double the cost on each workers comp claim. The safety consultant had already reviewed their safety program and had made some minor tweaks, but nothing that would have any significant impact on their claims or their claim cost.

By the end of the claims audit’s first day, the claims auditor knew what was driving the cost of the workers’ comp claims sky high. There was no investigation by the adjusters of any of the claims when they were reported to the third party administrator (TPA). In each claim, the first file note was, “Called employer; they do not question the claim.” That was it. There was no other investigation on the claim.

A proper claims investigation entails various aspects, far more than confirming with the employer that the claim was reported! The claims investigation has to be much more than asking the employer if the employer is suspicious of the claim.

Start Investigation Based on Facts & Circumstances Reported by Employer

Each claim is unique. Sure, there will be a lot of similarities with previous claim files, but the facts and circumstances surrounding the injury will vary. The investigation should be started based on the facts and circumstances reported by the employer. It is the claims adjuster’s responsibility to review all the information about the claim to both weed out the claims that should not be paid and to control and manage the claims that are owed.

It is a commonly accepted premise in the insurance industry that good claims handling leads to good results and poor claims handling leads to poor results. This applies to both the claim of questionable authenticity and the valid claim. If a valid claim has poor claims handling, the claim cost will be higher. The first step in the process of having a successful claims management program is a good investigation of each claim.

Start Investigation Immediately

Immediately upon assignment of the new workers’ comp claim the adjuster should begin the investigation. Immediately (meaning, in the first few minutes) is not always possible. But the longer the adjuster delays to start an investigation, the poorer the results. If the TPA’s published best practices state same-day contact – that is good. If best practices state 24-hour contact – that is acceptable. If best practices have no time limit for making contact with the employee, employer and medical provider, or if the time limit is longer than 24 hours, the TPA is putting their own interest and what is easy and best for themselves ahead of what is best for the employer.

The first investigation step is to contact the employer to review all known information about the claim. The mistake the adjusters made in the claims audit noted above was contacting the wrong person at the employer. They were discussing the claim with the workers’ comp coordinator for the employer. The person(s) the adjusters should have been contacting was the injured employee’s direct supervisor and co-workers who saw the accident. If no one saw the accident, then the adjuster should contact the first person the employee advised of the accident. The reason for this is to establish exactly what happened, the nature of the injury, and the extent of the injury.

It is better for the adjuster to discuss the accident with the employer first, but that is not always possible. If the adjuster is unable to reach the employer, the adjuster should still make immediate contact with the employee. The quality of the adjuster’s contact with the employee is key. The contact needs to be thorough with the adjuster learning as much as can be learned about the claimant and the accident. If there is any question about the validity of the accident, or there is the possibility of subrogation, or the injury is severe, the initial interview should be in the form of a recorded statement from the employee.

19 Points to Cover in a Proper Workers’ Comp Claim Investigation:

The details/facts of how the accident happened.
The names of aall co-workerswho witnessed the accident.
The nature of the employee’s disability.
The extent of the injury and all body parts that were injured.
Has the employee previously had an injury to the body part(s) involved in this accident?
A review of all prior injuries – work, vehicular, recreational, etc.
Verification of all information on the employer’s first report of injury.
Confirmation of all information to support subrogation.
A description of the employee’s job duties.
The employee’s job title.
The equipment or tools involved in the work at the time of the injury.
The experience level of the employee – how long on the job, and prior experience in the same type of work with other employers.
Confirmation of lost time.
The availability of modified duty work.
The identification of all medical providers for the injury.
The type of medical care being provided.
The nature of any pre-existing medical conditions – obesity, diabetes, etc.
Any concurrent treatment with pre-existing medical conditions.
The identification of pre-injury medical providers if pertinent to the claim.

At the conclusion of the interview with the employee, the adjuster should discuss the indemnity benefits that will be provided, the employer’s desire to get the employee back to work when the employee is medically capable of doing so, and the need for the adjuster and the employee to stay in contact. The adjuster should arrange for the employee to call the adjuster after each medical appointment to provide an update on the status of the medical treatment and the employee’s work status.

Assess Injured Workers’ Attitude

Contact with the employee should give the adjuster insight into the claimant’s attitude toward:

The employer.
The medical treatment.
The early return to work.
The benefits provided by workers comp.

The relationship between the adjuster and the employee should not be an adversarial one, but one of mutual cooperation where the adjuster does whatever can be done to facilitate the employee’s recovery and return to work.

Timely Investigation Allows Adjuster to Better Manage Claim

A timely initial investigation allows the adjuster to better manage the claim. By establishing contact with the employee and discussing thoroughly the aspects of the claim, the adjuster significantly reduces the likelihood of attorney involvement, the treatment of unrelated medical conditions, the inclination of the employee to take extra time off work, and the likelihood of co-workers thinking it is easy to “take a vacation on comp.”

A proper investigation allows the adjuster to manage the many facets of the claim as it develops. It allows the adjuster to make an early and proper determination of compensability and to pay benefits quickly and correctly. It facilitates the timely involvement of medical management. And, the proper investigation leads to much lower claims cost.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Claim Audits & File Review

Know Two Types of Functional Capacity Evaluations (FCE)

June 25, 2018 by Rebecca Shafer, J.D.

When a physician is treating an employee for a back injury or other job related injury, the decision on when to return the injured employee to work is often a subjective decision. The physician who is unsure of the employees physical capability will often turn to the physical therapist for an objective opinion of the employees ability for work. The physical therapist will provide a Functional Capacity Evaluation (FCE) by administering various tests to determine the employee’s functional capacities and limitations.

Comprehensive Examination and Evaluation

The FCE is a comprehensive examination and evaluation by the physical therapist that objectively measures the employees level of functioning. The testing will document the employees ability, or the lack of ability, to perform the essential job related task over a specific time frame. The FCE will provide objective information to the physician in several areas:

the employee’s functional abilities and job demands
the disability evaluation
when to return the employee to work
whether or not the employee can return to the job held prior to the injury
the employee’s functional abilities away from the job
to information to design a rehabilitation plan, if needed
the need for other medical intervention and/or treatment

While most workers compensation adjusters and employers will look at a FCE as a way of proving the employee is able to return to work, it serves a much greater function. The results of the FCE will often limit the disability rating of the employee, preventing the physician from assigning a higher disability rating than is justified. Furthermore, the FCE will determine physical limitations the employer will need to know to modify the employee’s job, preventing a needless re-injury of the same body part.

Job Specific & General Purpose FCE

There are two types of FCE, the Job Specific FCE, and the General Purpose FCE. The Job Specific FCE measures the employee’s ability to perform the task and physical demands of a specific job. It can be performed at the physical therapist’s clinic, but the physical therapists can go with the employee to the actual job site and evaluate the employee’s ability to do the essential task of the employee’s job. The job-specific FCE will determine if the employee can safely do his prior job or if modifications of the required work are needed.

The General Purpose FCE is normally used when there is no longer a job for the employee to return to or when the job functions have not been determined. The General Purpose FCE consists of a group of standardized test and measurements that can be used to establish the employee’s overall physical capabilities. The results of the General Purpose FCE can be used to evaluate the employee’s ability to perform specific jobs that may come available to the employee.

Determine Medical Status of Employee

Prior to starting the FCE, the physical therapist will review the medical records of the employee to determine the medical status of the employee. The physical therapist will establish a baseline for the employee based on the known job demands. The job demands of the employee will be characterized per the US Department of Labor’s “Selected Characteristics of Occupations as Defined in the Revised Dictionary of Occupational Titles” as:

sedentary – exerting up to 10 pounds of force occasionally,
light – exerting up to 20 pounds of force occasionally or up to 10 pounds of force frequently
medium – exerting 20 to 50 pounds of force occasionally or 10 to 25 pound of force frequently
heavy – exerting 50 to 100 pounds of force occasionally or 25 to 50 pounds of force frequently
very heavy – exerting in excess of 100 pounds of force occasionally or in excess of 50 pounds of force frequently or in excess of 20 pounds of force constantly

Both the Job Specific FCE and the General Purpose FCE measure the employee’s ability to perform various motions, movements, and skills. The ability to do the accomplish the physical demands of the job will be measured in these areas:

Balancing Carrying Climbing Crawling
Crouching Far vision Feeling Finger dexterity
Fingering Handling Hearing Kneeling
Lifting Manual dexterity Motor coordination Near vision
Pulling Pushing Reaching Sitting
Standing Stooping Talking Walking

Again, using the US Department of Labor guidelines, the employee’s tolerance level during an eight hour work day for the above activities is categorized as:

Not Present (Never) – The activity does not exist in the job (example: Crawling could be classified as Not Present in the job)
Occasionally – The activity exists less than 1/3 of the time (example: Climbing – occasionally)
Frequently – The activity exists from 1/3 to 2/3 of the time (example: Carrying – frequently)
Constantly – The activity exists 2/3 or more of the time (example: Walking – constantly)

Document Evaluation Results

When performing the FCE, the physical therapist is responsible for ensuring the test are appropriate for the employee and the test can be done safely. The physical therapist will review the musculoskeletal condition of the employee as reported by the treating physician. The physical therapist will screen the employee for any underlying medical pathology that would limit or prohibit the employee from participating in the FCE.

Upon completion of the FCE, the physical therapist will document the evaluation results. The FCE report will confirm the employee can return to work without job modifications or will confirm the employee can return to work with specific job modifications, or the need to delay the employee’s return to work. The FCE may also address the need for work hardening or other interventions that would improve the employee’s physical abilities. Properly utilized, a FCE can provide the treating physician with the necessary information to return the employee back to work.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Return to Work and Transitional Duty

Seven Sections of Documentation For A Properly Organized Workers’ Comp Claim File

June 14, 2018 by Rebecca Shafer, J.D.

The workers’ compensation claim file should have Seven Sections of documentation that relates to the claim in a properly organized manner.

1- Claim Investigation:

The claim investigation section of the file should contain the adjusters claim file notes on everything that has occurred during the entire course of the claim. This includes a summary of each telephone call and a summary of all medical reports, state forms, letters, attorney reports, etc.

The claim investigation section should also contain either the transcript of the employees recorded statement or the claim file notes should contain a detailed review of the employees recorded statement. If a recorded statement was not obtained, the details of the employee’s initial interview should be summarized in the claim file notes. The claim investigation section should also include the employer’s supervisors recorded statement or a detailed review of the supervisor’s version of the accident.

A copy of the Employers First Report of Injury should be included in the claim investigation section for a comparison of the claimants version of the accident with the insured’s version of the accident.

When there is the potential for subrogation, for example – injuries involving an automobile accident or injuries involving a machine malfunction, documentation to support the subrogation should be included in the file investigation. This can include anything from a police report to a mechanical engineers evaluation of the machine that malfunctioned.

If there is a question of compensability or subrogation, the claim investigation section of the claim file should also include the recorded statement of witnesses or others who have detailed knowledge of the accident or occurrence.

If the claim lingers and there is a question of malingering by the employee, the claim investigation section will also contain the surveillance reports on the employee.

2- Medical Documentation:

The medical documentation section of the claim file should be divided into two categories, medical bills, and medical reports. Each of these two areas should be further divided into medical providers, with all medical bills by each medical provider grouped by date of service, and all medical reports by each medical provider grouped by the date of service.

Miscellaneous medical documentation – ambulance bills, prescriptions, durable medical equipment, etc., should be grouped by the category and organized chronologically.

3- Indemnity Documentation:

The employer’s wage statement reflecting the total compensation (over the state determined pre-injury period for benefits calculations) should be clearly identified in the claim file. Attached to the wage statement should be the calculations used to determine the temporary total disability benefit. If the disability benefit rate for permanent partial disability or permanent total disability is different from the disability rate for temporary total disability, the calculations used to determine the permanent partial disability or the permanent total disability rate should be shown.

Any documentation submitted by the employee to claim a higher rate of indemnity benefits should also be included in this section. This could include W-2 forms, copies of previous bonus checks or commission checks, etc.

4- State Forms:

A copy of every form submitted to the state by the employer, the employee or the insurance company should be included in this section of the claim file. State forms can be organized either numerically by the state form number, alphabetically by the state form name or chronologically by the date the state form was submitted to the workers’ compensation commission/bureau/agency/department, etc.

5- Hearings & Legal:

If any party requests a hearing, trial or other legal determination of benefits, this section would contain the documentation of the legal proceeding. This can include petitions for benefits, request for hearings, discovery documents and transcripts of depositions or transcripts of hearings.

This section of the claim file should also contain all correspondence between the work comp adjuster and the employee’s attorney, all correspondence between the work comp adjuster and the defense attorney, and all correspondence between the employee’s attorney and the defense attorney. If outside experts have been brought into the claim, the correspondence between the outside experts and any other party would be included in this section of the claim file.

6- Medical Management:

The medical management section of the claim file should include all correspondence and communications between the triage nurse and any other party. It should all obtain all reports, correspondence and communications between a nurse case manager assigned to assist the employee and any other party.

7- Vocational Rehabilitation:

The vocational rehabilitation section of the claim file will contain all the reports and activities of the vocational counselor assigned to the employee. This can include a broad range of information from vocational testing results, to available jobs in the community, to vocational retraining of the employee.

Summary:

The properly organized workers’ compensation claim file will prevent mistakes in the claim handling. It will also reduce the amount of time the adjuster works on the claim file by eliminating time spent searching for specific information. When the claim file is complete and well organized, everyone – employee, employer and insurer – benefit by having all aspects of the claim handled and concluded timely and properly.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: TPA and Claims Administration

3 Questions to Eliminate Return to Work Disincentives

May 31, 2018 by Rebecca Shafer, J.D.

You have implemented a corporate return-to-work program, but your projected workers’ compensation savings haven’t yet materialized. Supervisors are telling you they can’t get employees back to work, and even if they could they don’t WANT them to return to work. We’ve all heard it.

It may be time to examine the impact of collateral resources, often resulting in employees out on workers compensation receiving more income and benefits than they would have if they were working.

Common Disincentives to Returning to Work:

Salary and Wage Continuation: Some companies pay 100% of salary in lieu of having an employee collect workers compensation for injuries of short duration.

Occupational Injury Pay Supplements: Many firms pay supplemental benefits to make up the difference between workers compensation benefits and regular earnings.

Open-Ended Job Return: Instead of holding jobs open indefinitely, employers should hold jobs open for a specific time period, such as six or nine months.

Vacation and Sick Time: Companies frequently allow vacation and sick time to accrue for employees on workers compensation. Some even allow employees to “borrow” more sick time if they need to stay out of work longer.

Short-Term Disability: In some companies, disabled employees receive STD benefits in lieu of salary after six weeks. But the standard definition for disability may differ from workers comp, allowing an employee to collect both.

Perk Continuation: Employers often maintain ancillary benefits and privileges such as car allowances, club and professional dues, company store privileges and periodical subscriptions for employees on disability.

Loan Protection Policies: Individual insurance policies are available to pay mortgages and consumer loans such as car loans and credit card debts in the case of a disability.

Unemployment Compensation: In a few states, an employee receiving workers comp also can qualify for state unemployment benefits.

Pension and Retirement Plans: If these plans do not allow for the offset of workers comp benefits, an employee can receive workers compensation benefits and a full pension.

Product Liability Actions: An employee can file an action against the manufacturer of a product that injured him to collect damages. The employer should seek reimbursement for workers comp payment from any such settlement.

3 Questions to Eliminate Return to Work Disincentives:

What Benefits are Injured Workers Getting By Not Working?

Many companies fail to look closely enough at their internal wage and benefits structure before embarking on programs to reduce workers compensation costs. There are numerous collateral income benefits and sources providing built-in disincentives to remaining injury-free or returning to work as soon as possible.

For example, a major newspaper was considering an expensive incentive program to motivate employees to return to work, but a careful examination of the company’s situation revealed the reason employees were not returning to work was because they earned the equivalent of 115% of their pre-injury earnings when the stayed out of work.

In another case, an injured construction company employee received long-term disability (LTD) payments after 26 weeks of disability, in addition to workers compensation benefits. The total of these benefits exceeded his pre-injury earnings.

And, his childcare and commuting expenses also were greatly reduced while he was home.

Examine Extra Insurance Your Employee May Have

If an employee has purchased credit disability insurance, he or she may have eliminated house and car payments while being unable to work.

As such, he refused his employer’s offer of a transitional duty job at full salary because his LTD and credit disability policies would have terminated the benefits.

Get your Departments to Work Together to Design WC Policies.

In a large company, the directors of human resources, industrial relations, workers comp and employee benefits and compensation must all be involved in designing, administering and maintaining policies. Incentives to remain at and return to work must be built into the management systems. Disincentives must be removed from all direct and indirect sources.

Substantial savings can be achieved when a company coordinates its salary, benefits and compensation programs, so employees don’t earn more by staying out of work. If not properly coordinated, a company’s employee benefit and compensation programs may inadvertently serve to extend workers compensation absences.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Return to Work and Transitional Duty

7 Reasons A Workers’ Comp Claim Should NOT Be Closed

May 3, 2018 by Rebecca Shafer, J.D.

A few years ago a large national third party administrator (TPA) got into a lot of trouble when a Fortune 500 client noticed some major irregularities in the closing and re-opening of claim files. The client noticed that an abnormal number of claims that were closed were being re-opened by the TPA. The risk manager of the client decided to find out why.

Salary Bonus Program Based on Closed Claims

The TPA had instituted a salary bonus program where adjusters who met different performance criteria received a small monthly bonus. One of the performance criteria was to close as many old claims each month as new claims received. The purpose of this particular performance criteria was to move files to closure as quickly as reasonable. What the adjusters figured out was a way to circumvent the intent of the performance measurement in order to make their numbers look good.

In the last week of each month, the adjusters who had not closed as many old claims as new claims received would select files that had little current activity and close them in the computer system.

Adjusters Game The System

The following week in the new month, the adjusters would re-open the claim files and continue to handle them. Obviously, this was not the proper way to handle file closings.

Only Close Claims When All Known Activity Is Completed

A workers’ compensation claim should not be closed for any reason other than when all known activity to be completed on the file has been completed. If any of the following situations exist on a work comp claim, it should be left open:

the employee has not completed all medical treatment
the temporary total disability indemnity has been paid and concluded, but the employee is continuing to treat with the medical provider
the employee has completed the medical treatment, but all medical bills have not been paid yet
the employee has temporary total disability benefits that have not been paid
the employee has completed all medical treatment, and all medical bills have been paid, but the employee is still receiving weekly or bi-weekly payments for permanent partial disability or permanent total disability
the widow(er) is still receiving weekly, bi-weekly or monthly death benefits
the medical bills have all been paid, all indemnity benefits have been paid, but there are still outstanding bills on the claim for the defense attorney, nurse case manager or other provider of service.

If there is a possibility that another dollar can be spent on the claim, the file should not be closed.

During a recent claim file audit, the worker’s compensation claims manager wanted to argue whether or not claims with all indemnity benefits paid, but with on-going medical maintenance treatment should be classified as open or closed. The claims manager had several old-dog files where the employees had permanent medical problems and occasionally went to the doctor. In several of the old-dog claims, the employee was making a once a year visit to the doctor. The claims manager had closed the files and was making payments on the closed files each year. This was another situation where the manager’s performance was being evaluated based on the number of files closed.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Claim Management

7 Ways Your TPA May Be Underpaying Your Company Workers’ Comp Payments

April 26, 2018 by Rebecca Shafer, J.D.

If you ask any workers’ compensation adjuster how to calculate the amount of the temporary total disability check for an injured employee who is unable to return to work, you will get a quick answer like “it is two-thirds of their average weekly wage.” {While all states do not use two-thirds of the average weekly wage, for this blog, we will} In most cases, the adjuster will be correct, but in a small percentage of the disability checks, the employee is underpaid.

The component of what constitutes “wages” is an area of workers’ compensation that has almost as many variations as there are states. While the adjuster normally includes vacation pay and holiday pay in the indemnity calculations, many other types of compensation get overlooked.

Buried deep in the work comp statutes, or in some cases, court decisions, is a definition of what constitutes wages. For the employee who is paid $15 per hour, and never works anything but a 40 hour week, the adjuster’s calculation of a weekly disability benefit of $400 ($15 x 40 x 2/3) is correct if none of the following exceptions come into play.

1. A Second Job:

In about half of the states, if the employee is working a second job for another employer, the employee is entitled to two-thirds of the income lost from the other job. Let’s say the above employee is making $15 an hour from your company and works from 8:00 a.m to 4:30 p.m for your company. When the employee get’s off work, he goes down the street and starts his part-time janitorial job that is from 5:00 p.m to 9:00 p.m where he earns $12 per hour. Due to his part-time job, the adjuster will need to add another $160 ($12 x 20 x 2/3) to the weekly indemnity check. This hypothetical employee would get an indemnity check of $560 ($400 + $160) per week, assuming that the $560 per week is below the state cap for weekly indemnity checks. [I know it doesn’t seem right that your work comp coverage is paying for lost income from work at another employer, but that’s the law in many states].

2. Training Pay:

Closely kin to the second job compensation is training pay. If the hypothetical employee above did not have a second job but was attending a night class where he was being paid by your company $75 per week to attend, in some states the lost income is owed if he could no longer attend the class due to his on-the-job injury. The adjuster would need to add $50 ($75 x 2/3) to his week check. If the nightly class had only 4 more weeks to run, then after the fourth week, the adjuster could remove the extra $50 per week from the indemnity check.

3. Freebies:

An area of compensation that a lot of adjusters miss (and for that matter, attorneys representing the injured employee) is the value of freebies. If the employer routinely provides free meals or free housing as part of the compensation (think migrant farm worker in a state where migrant farm workers are covered for workers’ comp), and the employer no longer provides the free meals or free housing after the injury, the value of the freebies has to be added to the calculation of the weekly indemnity check.

4. Commissions:

The calculation of the weekly indemnity check for the salesperson would seem to be easy like the calculation of hourly workers indemnity check – two-thirds of the average income over the period of time used to calculate the weekly check. This works if the salesperson income is steady, but not with the new salesperson whose income is steadily increasing each week or month. In most states that is too bad for the salesperson with no projection of future earnings being allowed. However, a few states will allow “equitable estimation,” and the work comp boards will award it.

Another area of disputes with salespersons on how much their indemnity check should occur when the salesperson earns additional commissions or overrides. If the salesperson who sells over and above X number of units per year gets an additional percentage of commission for exceeding the goal but will come up short of the goal due to an on-the-job injury, does the adjuster still owe an indemnity payment on the additional percentage? It varies tremendously from state to state. It will normally take some research on the part of the adjuster to answer that question. The same issues apply when the salesperson receives overrides from recruiting additional salespeople but is unable to recruit due to the on-the-job injury.

5. Bonuses:

Bonuses are another area where the employee often gets shortchanged on the indemnity check. For instance, let’s say the employee works in a state where only the previous 13 weeks of income (some states use 26 weeks of income, other states use 1 year’s income) is used to calculate the average weekly wage. The employee gets hurt on November 1^st, and is still off work at the end of the year when the employer passes out the year-end bonuses. If the employer does not have the employee on the payroll, and the employee does not receive the bonus, the work comp adjuster would owe two-thirds of the bonus amount. This is only if the sole reason the employee did not receive the bonus is that the employee was not working due to the injury at the time the bonuses were passed out.

6. Tips & Gratuities:

One area where the employees often receive less money than what they should receive on the indemnity checks is the employees who earn tips and gratuities in addition to their base pay. When the employee is injured, the employer reports the income amount that is on the employer’s record. When the adjuster tells the employee what the amount of their indemnity check will be, they often hear from the employee “that’s not right, that does not include the tips that I did not report”. When the waiter, bell-hop or taxicab driver tells the adjuster they cheat the government out of tax revenue by under-reporting their income; there is nothing the adjuster can do about it. [What the adjuster is thinking but won’t say – ‘if you are willing to cheat Uncle Sam on your income tax, you are probably willing to cheat the insurance company on your work comp claim’].

7. Benefits:

In some states, the employer is allowed to discontinue contributions to 401k plans, health insurance, and other benefits when the employee is off work for an extended period of time. If the employee has to pick up the tab for the health insurance or other benefits, some states require the work comp adjuster to consider the value of the lost benefits in the calculation of the weekly indemnity check amount.

Summary:

The calculation of the indemnity check depends on what the state statutes require. Both the employer and the workers’ compensation adjuster need to know the lesser known points of what is considered a part of the employee’s compensation in their own state.

CHECK YOUR STATE LAW!

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Claim Management

Top 8 Considerations When Selecting Your Workers’ Comp Claims Adjuster

April 19, 2018 by Rebecca Shafer, J.D.

If you are the risk manager or workers’ compensation claims coordinator for a large company where you report new work comp claims on a regular basis, you need to select your adjuster. Whether your workers’ compensation claims are handled by the insurance company or a third-party administrator (TPA), your claims handling agreement should specify that your company has the right to select, from their staff, the adjuster(s), who will handle your claims. If the insurance company or TPA balks at your company having input into who handles your claims, it is time to get another insurance company or another TPA.

Someone in your company must have an in-depth knowledge of the adjuster handling your claims – NOT just the adjuster’s name and phone number. If you want to maximize the effectiveness of your adjuster, you need to know the adjuster’s claim handling style. You also need to know when to step in if the adjuster is not achieving your expected results.

#1- Dedicated or Designated

If you have multiple workers’ comp adjusters in the same claims office handling your claims – ASK — “How many of our claims are you handling?”

The problem with having multiple adjusters in the same office each handling only a few claims for your company is:

They do not know what your preferences are.
They do not know your return-to-work program.
And, they do not know the claim handling philosophy of your company.

Depending upon the jurisdiction and the statutes involved, the experienced workers’ comp adjuster can handle from 125 to 150 claims at a time. If you have less than 125 claims in the claims office, it would be in your company’s best interest to have only one adjuster, a designated or dedicated adjuster, working on your claims.

A “designated” adjuster handles all your claims plus claims for other employers. On the other hand, a “dedicated” adjuster handles only claims for your company. If, for example, you have 280 open workers’ comp claims in the same claims office, you want two dedicated adjusters who working exclusively on your claims.

If your insurance company or TPA is using multiple adjusters on your claims, you need to have a serious chat with them about having a designated adjuster or dedicated adjuster(s) for your program.

#2- Adjuster Experience – Why It Is Important

The level of experience and training the adjuster(s) bring to your program makes a major difference in the outcome of your workers’ compensation claims. While every adjuster has to go through the training stage, do you want the adjuster-trainee making mistakes on your claim files? Let the adjuster trainee learn how to handle claims on the workers’ comp files of the employers who not attuned to their workers’ comp program.

Request an experienced adjuster who knows:

the statutes and case law within the jurisdiction,
the plaintiff attorneys who settle fast and cheap
the attorneys who drag the employees’ claims out trying to maximize them,
the medical providers and their treatment style
the medical providers who are liberal with their permanency ratings and the medical providers who are conservative
the best defense attorneys, and
the tendencies of the industrial commission/workers’ comp board/court

#3- Investigator or Record Taker

You do not want the experienced dedicated adjuster who is a record taker. A “record taker” copies what is on the Employer’s First Report of Work Injury form to obtain the description of the accident that injured the employee.

An “investigator” reads the Employer’s First Report then contacts the employer’s workers’ comp coordinator, the employee’s supervisor, the employee, and any witnesses to the accident. The investigator obtains detailed information from each party about how the accident occurred before accepting compensability.

The investigator does not stop being quizzical when compensability is accepted. The investigator reads every medical report thoroughly to have a complete understanding of the medical status and medical issues. The investigator then uses that knowledge to move the claim toward resolution. The record taker just makes a note of what the medical report stated.

#4- Combatant or Complacent

When the employee’s attorney makes an unreasonable demand, you want an adjuster who will stand up and say NO. Your company does not need an adjuster who takes the easy way out and accepts whatever the employee or the employee’s attorney wants. Your adjuster should not always be in a combatant mode but should know when to take a stand on statutes, principles, or common sense. The complacent adjuster who does not stand up for the employer’s rights will cost your company a lot of money. When selecting your adjuster ask questions about how aggressive the adjuster will be in defending your workers’ comp claim.

#5- Up to Date or Behind the Times

The workers’ comp statutes and the case law in every jurisdiction are constantly being challenged and changing. The adjuster (and the adjuster’s company) you select for your workers’ comp program should be staying current on all legislative changes and recent case law. When selecting your adjuster, ask what sources the adjuster uses to know about changes in the workers’ comp statutes. The best adjusters have several sources of new information including defense firm newsletters, workers’ comp websites (like this one), and workers’ comp groups on LinkedIn and other social networks.

The adjusters for your company’s workers’ comp claims should be current in their state required continuing education courses. It is also a good sign if the adjuster has obtained their AIC, ARM, AIM or CPCU designation, as it shows the adjuster has continued to learn and improve his/her skill set.

#6- Supervised or Unsupervised

As a part of your claims handling agreement with your insurance company or TPA, you need access to their on-line claim file notes. While you expect to see your adjuster notes frequently, how often do you see the supervisor’s file notes? Does the adjuster’s supervisor offer suggestions or recommendations on your claims, or, do you never see a file note by the supervisor? Even if you have the claims office’s best adjuster, every adjuster can benefit from a second set of eyes on the file. The supervisor should be reviewing the file and making comments on the progress of the file every 60 to 90 days. If not, you need to get the supervisor involved.

#7- Historian or All in Adjuster’s Head

A good adjuster is a historian, meaning everything the adjuster has done on the claim file is documented completely in the file notes. If your adjuster is on vacation or off work sick, you should be able to read the files notes on any of your workers’ comp claims and know exactly where the claims stand. If the adjuster does not keep good files notes, but has it “all in his head,” what happens if the adjuster quits, transfers, gets promoted, or dies? The next adjuster will spend considerable time not working on your claims, but recreating what should already be noted in the file. When you are selecting your adjuster, be sure to state your expectation that activities on the file are to be documented in the file notes.

#8- Results

Once you have experienced dedicated adjuster(s) working on your workers’ comp claims, don’t stop there. You must benchmark your results each year to verify that the adjuster(s) working on your claims are exceeding the benchmarks for your industry. If your adjuster’s results are not adequate, do not hesitate about asking your insurance company or TPA for the selection of another adjuster(s) for your workers’ comp program.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Claim Management

The Four Phases of Employer Involvement In A Workers’ Comp Claim

April 4, 2018 by Rebecca Shafer, J.D.

As an employer, you often hear the recommendation “stay involved in your workers’ compensation claims.” That is great advice, but way too often it’s where the discussion ends without any explanation as to what “staying involved” means.

Four Phases of Employer Involvement in Workers’ Comp Claim

The employer’s involvement in the workers’ comp claim begins before the injury occurs and ends when the employee is back at work, fully recovered from the injury. Let’s first look at four phases of employer’s involvement in the workers’ comp claim, then we will look at what the employer cannot do in regards to the workers’ comp claims.

The four phases are:

Pre-injury process
The injury occurrence
The claim process
The claim settlement

If you have employees, sooner or later an employee is injured on the job. The following are some suggestions about what you can do prior to the injury occurring that will impact on the outcome of the workers’ comp claim. Make sure you have “touch points” for each phase of the claim.

Here is an example of what is appropriate:

Provide each new hire with an employee accident brochure outlining what the employee should do in case of an accidental injury.

Have a written transitional duty policy.

Provide each supervisor within the company a written guide on how they are to report and be involved in workers comp claims.

Post the injury procedure policy where all employees will see it.

Have a published returned to work policy.

Have a strong safety program and tie the manager’s performance evaluation, raise, bonus or promotion to his or her safety record.

Have a medical provider network in place through your insurance company or join a medical provider network for self-insureds. Make sure all employees know about and use the network. This is called your “penetration” — you should have a penetration rate of > than 90%.

Prevent fraud by letting all employees know workers comp fraud takes money away from their raises and bonuses.

Put up posters reminding the employee that workers comp fraud is a crime and will be fully prosecuted.

Post all the state required notices in a place convenient for all employees to see including workers comp laws, OSHA posters and anything else required in your state.

Post a list of the required medical providers (where allowed by state statute) or recommended medical facilities (in the states where the employee is allowed to select their own doctor). Consider using an outcome-based network where providers with exemplary performance are included in the network.

Contact: RShafer@ReduceYourWorkersComp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Management's Role in Workers Comp

7 Questions the Self-Administered Company Should Ask When Hiring a Workers Compensation Adjuster

March 29, 2018 by Rebecca Shafer, J.D.

If you ask an adjuster candidate if s/he knows how to handle a work comp file, you will get an obvious answer like “I handled an open inventory of approximately 125 claims at any one time during my 5 years at XYZ Company.” The answer by the adjuster candidate assumes s/he was doing the job correctly, but is that true?

Before you interview adjuster candidates, take time to create a fictional test claim customized to the statutes within your state, with a partial investigation completed. The purpose of a “test claim” is to test the candidates’ technical competence and real knowledge of file handling.

Include in the fictional test claim information:

facts of the accident, with the supervisor’s name and the names of witnesses
information on the injury (make it a burn or a fractured limb with the need for surgical repair, or another complicated injury)
Employer’s First Report of an Accident form for your state (with wage information but no mention of the employee’s second part-time job)
have facts (like horseplay or intoxication) that create questions regarding compensability
have facts (like sub-contractor or seasonal worker) that create questions regarding coverage,
employee treating at an unapproved medical provider

Following a review of the fictional claim by the candidate, ask the person:

opinion as to coverage for the claim
opinion as to compensability for the claim,
to outline the investigation steps to take (interview the employee, the supervisor, and witnesses? contact the medical provider?)
provide a reserve calculation sheet showing how reserves will be set for the claim,
show his/her calculations of the average weekly wage
list the state forms needing to be filed, and when
handle the medical treatment at the unapproved medical provider

In your review of the adjuster candidate’s answers to the questions on the “test claim” determine if s/he missed any key points like coverage and compensability. Verify the investigative steps are correct, that s/he know how to establish the average weekly wage properly and to set reserves. Be sure the appropriate state forms would be filed and s/he knows and understands all state-specific statutes. [If you are unsure as to the quality of the adjuster’s answers your claims manager or defense attorney can review the answers].

PERSONAL CHARACTERISTICS

The personal characteristics of the workers’ comp adjuster candidate are very important. Being a workers’ comp adjuster is not easy. It takes a person with many personal characteristics beyond the job skills.

Personal characteristics include:

Self-stress management as the workers’ comp adjuster position can involve difficult people, deadlines, conflicting demands, pressure from both outside and inside the organization, and frequent change.
Reasoning to understand relationships between facts, information from various sources and to data.
Creative thinking as the facts and issues vary from one claim to the next.
Problem-solving ability to analyze the facts and use proper reasoning to solve the problem when confronted with both relevant and irrelevant facts.
Oral communication ability to obtain information from various sources and to convey information in a clear and precise manner.
Written communication skills to convey information in a well-organized manner
Interpersonal skills to deal with people who are injured, difficult, or even hostile.
Self-motivation to set personal goals and to take the initiative to accomplish personal objectives and company goals.
Honesty and integrity in all aspects of her interactions with everyone.
People skills including tactfulness, empathy, understanding, and concern.
Planning ability to set priorities, organize work, to achieve short-term and long-term goals.
Customer service skills to maintain rapport with employers and provide guidance and assistance to them.
Self-esteem to maintain a positive image of self and the company and to display it professionally.
Mathematical ability in establishing indemnity benefits and reserves.
Conscientious about the details of the work.
Plays well with others and encourage cooperation, commitment, and company loyalty.

If you are unsure how to measure or evaluate the personal characteristics of the adjuster job candidate, there are various personality testing services and forms available.

The list of technical job skills and personal characteristics could be extended several more pages for the selection of the best adjuster candidate for your self-administered claims program. The skills and characteristics outlined here will assist you in weeding out unqualified or inappropriate adjuster job candidates. While testing of the technical competency and personal characteristics of the adjuster candidates takes more time and expense, it is well worth the investment of your goal in hiring the best-qualified adjuster.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

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

Filed Under: Claims Adjuster & Employer Relationship

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7 Ways Your TPA May Be Underpaying Your Company Workers’ Comp Payments

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The Four Phases of Employer Involvement In A Workers’ Comp Claim

7 Questions the Self-Administered Company Should Ask When Hiring a Workers Compensation Adjuster

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