Blog - Work Comp Roundup

7 Ways to Avoid Mega Workers’ Comp Claims

October 18, 2018 by Michael B. Stack

“There was an uptick in the number of mega workers’ comp claims in Accident Year (AY) 2016,” according to NCCI. “Ten claims of at least $10M have been observed for AY 2016 evaluated at 24 months. This is more than for any of the previous 15 AYs at a comparable maturity.”

The organization’s latest research brief drills down further and outlines additional revelations:

These multimillion-dollar mega workers’ comp claims are frequently the result of motor vehicle accidents or falls from elevated levels.
It is the Contracting industry group that has by far the greatest share of mega claims
The carpentry classification has had more mega claims than any other class over the past 15 years.
The trucking classification — representing short-haul and long-haul — ranks 2nd in both mega claims and all lost-time claims.
Central nervous system injuries (neck/spine or head/brain) and injuries to multiple body parts account for nearly 95 percent of mega claims. For lost-time claims, these categories make up only 16 percent of the claim total.
Hospital inpatient and home health care account for more than half of the mega claim medical costs. This is in stark contrast to all lost-time claims where physician expenses and hospital outpatient represent most of the medical costs.
Approximately two out of three mega claimants spend at least three months as a hospital inpatient, and approximately one in five are in the hospital for more than a year.

Armed with this knowledge, workers’ compensation stakeholders should focus their efforts on preventing these injuries — especially in the industries affected most.

Auto Accidents

Even though strains and slips/trips are the leading causes of loss for all lost-time claims, motor vehicle accidents accounted for more than 30 percent of $10 million+ claims. These are also the #1 cause of work-related deaths, accounting for more than 40,000 fatalities in 2016. The 14 percent increase from 2014 represents the largest jump in more than 50 years.

The federal government says fatalities from distracted driving grew nearly 9 percent in 2015, outpacing the overall increase in traffic accidents.

The three types of distractions for drivers are:

Visual — eyes on the road.
Manual — hands on the wheel.
Cognitive/mental — mind on driving.

Cell phones, one of the main causes of motor crashes lately, involve all three forms of distraction. One big problem is that drivers talking on cell phones may not realize they are mentally distracted. Also, this type of distraction usually lasts much longer than either visual or manual distractions.

Despite common thinking, hands-free talking on cell phone while driving does not reduce the risk — due to the mental distraction. The argument that it is similar to talking with passengers flies in the face of research. Actually, adult passengers share awareness of the driving environment and having them in the vehicle lowers the crash risk.

Unfortunately, educating employees will not lead to voluntary compliance. Employers need to implement and enforce specific policies about driving. These should state that employees who are driving:

Are not allowed to use electronic devices, either handheld or hands-free.
May not answer calls. Incoming calls must be directed to voicemail.
Are prohibited from reading or responding to text messages and emails.
May make an emergency 911 call can only after parking the vehicle in a safe location first.

The driving policy should include:

Clear language.
Documented training and communication.
A requirement for all employees to sign the policy.
Disciplinary action for violating the policy. This could consist of warning for the first two violations and termination for the third incident.

The effort to encourage safe driving should involve senior leadership, as well as managers throughout the organization. A person high up in the organization can send a letter to employees explaining that the policy is going into effect for any employee using a motor vehicle associated with company business and/or electronic devices owned or used for company business.

Falls

While half the fatal falls in 2014 occurred from a height of about 20 feet, 12 percent of them were from less than 6 feet high. Construction workers are at most risk, although falls can happen to anyone, anywhere.

Falls are 100 percent preventable. OSHA has a three-fold plan to avoid falls:

PLAN ahead to get the job done safely
PROVIDE the right equipment
TRAIN everyone to use the equipment safely

Whether work is being done from a ladder, scaffolding or on a roof, all three of these mandates apply.

Employers must look ahead to ensure a job is done safely. That means identifying how the job will be done, the tasks involved, and the safety equipment that will be needed. Safety equipment should be included in a job’s cost estimate.

The area where the work will be conducted should be scanned for potential hazards ahead of time. For example, there should be level ground if ladders are to be used.

Workers exposed to potential fall risks must be given the proper tools and equipment to ensure they get the job done safely. Depending on the job, that might include

Fall protection such as personal fall arrest systems and safety gear that is fitted properly to each worker.
A ladder or scaffold that is appropriate for the job.
Slip-resistant shoes
Harnesses
Safety nets.
Stair railings and/or handrails

Holes in which employees could fall should be guarded with a railing and toe-board or flor hole cover.

Every employee who works at a site with fall risks must be trained on how to set up the area and proper use of any equipment to be used. All fall-protection equipment to be used should first be inspected.

Summary

Employers and payers are spending millions of dollars and watching their employees suffer for years over claims that are completely avoidable. Implementing and enforcing some simple steps can protect the entire organization.

Michael Stack - Amaxx Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center .

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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

6 Steps to Keep Liability Settlements Out of Medicare’s Crosshairs

October 17, 2018 by Michael B. Stack

No one likes to pay for items that are not their responsibility. This statement is true of the federal government in the workers’ compensation industry as the feds have exerted control over settlements involving injured workers who are or will soon be covered by Medicare. An entire cottage industry has sprung up comprised of experts who develop Medicare Set-Asides (MSAs) and ensure Medicare’s interests are considered before a workers’ compensation settlement is finalized.

As the Medicare Set-Aside industry has grown and matured in workers’ compensation, a similar approach is now being considered with liability settlements. The law on the books for decades clearly says that Medicare is supposed to be a secondary payer in such settlements. Lately, there have been clear indications the Centers for Medicare and Medicaid Services (CMS) plans to take action on this soon. How it will ultimately shake out is up for debate. In the meantime, payers should at least be aware of what is happening and take steps to prepare.

The Issue

“The extent to which settling parties must consider Medicare’s interests in medicals in a liability settlement continues to be unclear.” Thus begins a new white paper discussing the issue and what can be done. Written and published by Tower MSA Partners, Navigating Through the Fog: Medicare, Future Medicals & Liability Settlements reviews the workers’ compensation experience with CMS, outlines likely scenarios for liability settlements, and provides tips for payers.

Liability insurance coverage protects the policyholder or self-insured entity against claims based on negligence, inappropriate action, or inaction that results in bodily injury or property damage.

Examples include

Homeowners’ liability insurance
Automobile liability insurance
Product liability insurance
Malpractice liability insurance
Uninsured motorist liability insurance
Underinsured motorist liability insurance

Medicare beneficiaries must notify Medicare when a liability claim is made against a party with liability insurance and the liability carrier must report to Medicare when it settles a claim with a Medicare beneficiary. When there is a settlement, Medicare expects reimbursement for any payments it covered that should have been paid out of the settlement.

The settlement becomes more complicated when there are future medical costs for the specific injury. If Medicare is billed, it may seek reimbursement. In those situations, Medicare’s interests should be taken into account, and a liability MSA may be advisable.

Medicare Has Not Yet Established Framework for Liability MSAs

Unlike the process for workers’ compensation MSAs, Medicare has not established a framework for reviewing LMSAs or provided any guidance on the issue. Instead, any CMS reviews for proposed LMSAs that do occur are done on a case-by-case basis and only by some regional offices.

The good news is that, so far at least, there are no known incidents of CMS denying payment or seeking reimbursement for injury-related medical care after a liability settlement. Tower MSA Partners anticipates action from CMS within the next two years. When that happens, according to the white paper, CMS will need to address issues including:

Review thresholds
Allocation of the MSA based upon a compromise formula
Documentation required to submit to CMS with an LMSA proposal
Whether the LMSA review will occur pre- or post-settlement
Timeline for LMSA policy implementation
Multiple defendants and mass tort settlements
Pricing of medical in an LMSA (usual and customary vs. Medicare rates)

Other factors that come into play with liability settlements include policy limits, statutory tort caps, negligence rules, pre-existing conditions, case law and other issues that may result in a settlement for less than the full value of the claim.

What to Do

With things up in the air regarding liability settlements, one question is whether a claim for reimbursement could extend to the claimant and the primary plan, as well as the claimant’s attorney. Right now, it is uncertain.

Despite the vagueness of the issue, Towers suggests payers take the following actions to protect themselves and claimants.

Identify whether the claimant is a Medicare beneficiary or has a reasonable expectation of Medicare eligibility within 30 months.
If Medicare eligibility is or soon will come into play, evaluate the necessity of future injury-related medical care. Is future medical care claimed in the settlement demand or alleged in the pleadings?
If there is a necessity of future injury-related medical care, will this burden likely be shifted to Medicare? For example, does the claimant have a source other than Medicare to pay future injury-related medical care; e., group health plan, which will likely cover future injury-related medical?
If Medicare is the likely source of future injury-related medical care, consider whether there are sufficient settlement funds to allocate a portion to fully fund future medicals. If so, then consider an LMSA as part of the settlement. If there are insufficient funds to fully fund future medicals, then consider an apportionment of the future medical allocation in relation to other damages allocated in the settlement.
Document the file and settlement/release in regard to steps taken to consider Medicare’s interest:

– If an LMSA or other type of allocation for future medical has been included in the settlement, ensure the plaintiff is aware of his or her responsibilities in utilizing those funds for future medical expenses.

– If the LMSA has been apportioned, document the reasons why such a reduction was taken.

– If no LMSA or allocation for future medical has been included in the settlement, then ensure the plaintiff is aware of the potential implications for future payments by Medicare for injury-related medical care.

– Document why no such allocation has been included in the settlement/release.

Besides the future medical considerations, remember as well to investigate and resolve Medicare conditional payments, including payments made through Part C Medicare Advantage Plans.

Conclusion

Medicare may begin denying payment for claims if it determines that payment should have been made through a liability insurance policy or another primary payer. Such a change would likely delay liability settlements. Therefore, it is imperative to work with an experienced settlement planning professional, as failure to comply with MSP provisions can result in severe penalties.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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: Medicare Set Asides (MSAs)

5 Questions to Investigate the Mechanism of Injury

October 16, 2018 by Michael B. Stack

Members of the claims management team are required to conduct diligent investigations into workers’ compensation matters, investigate the mechanism of injury, and address issues of compensability. This is a task that requires them to determine if the information they receive fits the type of injury claimed. This includes not only injuries involving a specific incident, but also claims that culminated over a period of time. Failure to properly accomplish this task can result in protracted management of a claim and added costs to any workers’ compensation program.

The Anatomy of a Work Comp Injury

There are essentially two types of injuries employees sustain in the workplace. Each type of injury is unique in how they occur and the evidence one examines when deciding matters of primary liability.

Specific Incident/Sudden Onset: This type of injury is often easy to identify as it encompasses a specific injury that is easy to identify and occurs at a specific moment in time. These injuries include slip/falls, striking an object, an immediate onset of pain, or a fracture of a bone/joint dislocation.

Workplace Exposure/Repetitive Trauma: This is often more difficult to identify as to when the “injury” occurs as it primarily happens over a period of time. Common examples include the inhalation of dust, irritants or other substances that result in an injury/respiratory condition. In other instances, problems occur over a period of time that results in the degeneration of joints and discs. Questions as to the “date of injury” are often subject to contentious litigation as each jurisdiction defines when these injuries culminate. Examples include when the employee started missing time from work, when the employee first received medical treatment, or when the employee reasonably believes they have sustained a work injury.

Regardless of the type of injury, a complete investigation is required. Only deny claims in good faith.

Investigating the Mechanism of Injury

It is important for members of the claims management team to investigate and determine if the mechanism of injury (how it occurred) matches the claimed injury. It is also essential to analyze where the work activity is attributed to the work injury, or if the work condition was aggregated and/or accelerated due to work activity. Additional issues to consider include:

Did an injury occur as a result of the work activities?

Was the employee performing work activity consistent with the claimed injury?

If there was, in fact, a work injury, what body parts are actually involved? Defining an injury by ICD-10 codes may also be important given the reporting requirements for Medicare and Medicaid coordination of benefit

How long did the employee engage in the work activity for it to result in a work injury? Was it a substantial contributing factor in the disability and/or need for medical care and treatment/disability?

If not a specific incident-type injury, when did the injury culminate?

Questions regarding these issues may involve a medical director, nurse case manager, or someone with an advanced understanding of medicine.

Making Informed Decisions Regarding Primary Liability

It may be difficult for a member of the claims management team to make a legally defensible position when it comes to primary liability. This can be due to a number of factors beyond their control. If that is the case, utilize the service of a peer review physician or medical advisor to obtain further insight on an action plan for the claim.

Conclusion

Members of the claims management team are charged with a variety of tasks. Chief among them includes collecting applicable evidence and making reasoned decisions based upon the facts of the case and the law. This also involves seeking information on the mechanism of injury and determining if the claimed injury fits.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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

Crawford Offers Streamlined Ergonomic and Return to Work Efforts with Innovative Software

October 15, 2018 by Senior Editor

TORONTO, Oct. 9, 2018 /CNW/ – Crawford & Company (Canada) Inc. today announces the integration of Crawford EmployerWORKS™ software with its human risk service line. Crawford EmployerWORKS is an innovative software platform powered by MyAbilities™. It was designed to streamline and standardize the collection, communication, and analysis of physical, cognitive and psychosocial demands tied to risk assessment and return to work efforts. As a tool for the adjudicators, case managers and workers’ compensation consultants of Crawford’s Human Risk division, Crawford EmployerWORKS further empowers our professionals to effectively and efficiently handle disability claims by ensuring a prompt and successful return to work and implementing proper measures to prevent workplace injuries.

“Specializing in occupational (workers’ compensation) and non-occupational (leave and disability) claims from a claim and case management perspective, our human risk division strives to identify and implement new, effective methods to manage such claims ensuring a safe, timely and sustainable return to work,” said Heather Matthews, senior vice president, Crawford Human Risk. “Crawford EmployerWORKS serves to simplify and enhance our communication capabilities with clients, reduce claim costs, and increase success rates tied to sustainable return to work solutions.”

Click HERE to access EmployerWORKS’ capabilities.

This analytical system leverages the vast Crawford EmployerWORKS database to identify typical job demands linked to specific job profiles while incorporating risk factors to assist in mapping out a sustainable return to work solution. Crawford EmployerWORKS also includes tools to identify barriers for return to work in the form of physician causation analysis and psychosocial factors.

“We believe that everyone – employees, employers, health practitioners and insurance companies – will benefit from better prevention, injury management and return to work solutions through advanced ergonomics, artificial intelligence and digital risk assessment technology,” said Reed Hanoun, CEO of MyAbilities. “The EmployerWORKS suite is a whole new take on human asset management. We truly believe that we will revolutionize the way industries manage their ergonomics and safety strategies and that they will never look back!”

Through the use of innovative technology, Crawford continues to adhere to its mission to restore and enhance lives, business and communities by leveraging the appropriate expertise and analytical tools to identify and remove barriers hindering injured parties from obtaining gainful and meaningful employment following an accident, injury or illness.

About Crawford®

Based in Atlanta, Crawford & Company (NYSE: CRD-A and CRD-B) is the world’s largest publicly listed independent provider of claims management solutions to insurance companies and self-insured entities with an expansive global network serving clients in more than 70 countries. The Company’s two classes of stock are substantially identical, except with respect to voting rights and the Company’s ability to pay greater cash dividends on the non-voting Class A Common Stock (CRD-A) than on the voting Class B Common Stock (CRD-B), subject to certain limitations. In addition, with respect to mergers or similar transactions, holders of CRD-A must receive the same type and amount of consideration as holders of CRD-B, unless different consideration is approved by the holders of 75% of CRD-A, voting as a class. More information is available at www.crawfordandcompany.com.

About MyAbilities

MyAbilities is an Ontario-based healthcare data analytics company, focused on process automation for workplace safety, ergonomics and injury management. With its AI data-driven Software-as-a-Service (SaaS) offering, we help employers, insurance companies, healthcare providers and injured workers by preventing workplace injuries, expediting the return to work of injured workers, and reducing the cost of claims while promoting a healthy and fit workforce. More information is available at http://www.myabilities.com.

SOURCE Crawford & Company (Canada) Inc.

For further information: For more information, contact: Heather Matthews, Senior Vice President, Human Risk, Crawford & Company (Canada) Inc., Tel: 519.578.5540 Ext. 2672, Email: Heather.Matthews@crawco.ca; For media inquiries, please contact: Gary Gardner, Senior Vice President Global Client Development, Tel: 416.957.5019, Email: Gary.Gardner@crawco.ca

Related Links

http://www.crawfordandcompany.com

Filed Under: Return to Work and Transitional Duty

4 Data-Based Tips for Workers’ Comp Injury Prevention

October 11, 2018 by Michael B. Stack

10:00 in the morning is an expensive time of day for many organizations. There is a spike in injury frequency in the service/hospitality, construction/natural resources and healthcare industries, according to Pinnacol Assurance. The Colorado workers’ compensation insurer released trends based on five years of its claims data in four industries. The results can help employers in the industries take positive steps toward improved workers’ comp injury prevention.

Trends

Injury Frequency. While many injuries occur to newly hired workers, some industries were noteworthy for other spikes in injury frequency

Healthcare – 3 – 4 years after the hire date
Clerical/professional – more than 10 years after the hiring date

Also, in healthcare, 38% of injuries happen during the first year on the job, whether the worker is new to the organization OR new to the industry.

Danger Zone Times. A drop in blood sugar levels is speculated as a reason for the increase in injuries at 10 a.m. in several industries. Additional times of frequency spikes include:

Service Hospitality: 9 p.m. saw a spike in the most expensive injuries
Construction/natural resources: 9 – 11 a.m. and 1 – 3 p.m.
Clerical/professional: 8 – 11 a.m., with a significant spike at 2:00

Vulnerable Body Parts. The lower back is the most commonly injured body part in both the professional/clerical and construction/natural resources fields. It’s also the most expensive location for injuries in construction/natural resources. Other commonly injured and/or expensive body parts injured include

Service/hospitality: fingers, hands and lower back are most commonly injured. Lacerations, contusions, strains, sprains, and burns are the most expensive injuries.
Construction/natural resources: lower back, knee, foot, lower leg, and fingers are the most expensive body parts injured.
Healthcare: lower back, shoulder, knee, wrist, and ankle are the most expensive. Strains, strikes (needlesticks) and strains (lifting/carrying) are the most frequent causes of injuries, while animals are number 8 on the list of causes, due to home health care incidents.
Clerical/professional: lower back, knee, fingers, shoulder and wrist are the most commonly injured body parts. The most expensive injury types are contusions, strains, sprains, fractures and The most frequent causes of injures are strains from lifting, falls from ice/snow, falls on the same level, repetitive motion, and motor vehicle incidents.

Lessons and Strategies

While the reasons for the trends are not all known, employers/payers can use the data to focus their injury prevention efforts.

Train/retrain. All four industries reported a higher frequency of injuries among newer workers. But in at least two, there were frequency spikes years after the hiring date. Employers should provide thorough training for all new hires, including temporary workers. For example, 30% of injuries occur during the first year of employment in the clerical/professional industry. The top cause of injuries are strains from lifting. Proper lifting techniques should be a mainstay of the training. Knowing there is a spike in injury frequency more than 10 years after hiring, the training should be repeated on an ongoing basis, such as annually.

Encourage movement. In three of the 4 industries, there is a spike in injuries at 10 a.m. In clerical/professional organizations, most injuries occur between 8 and 11 a.m., with a significant spike at 2:00. Knowing this, employers should schedule activities that will get workers moving.

Walking meetings, for example, are a great way to get the body and brain going.
Getting fresh air is another good remedy, so scheduling short breaks and encouraging workers to step outside can be effective.
Stretching properly for even a couple of minutes can have a positive impact.
Group activities require social interaction, which revs up the body and mind.

Provide protection. Lower back injuries are rampant among all four industries. Provide protection for employee with the following:

Employers in the healthcare industry should seriously consider devices to help lift and move patients.
Construction companies can take simple steps, such as locating cement and other heavy materials close to where workers will use them, to prevent unnecessary handling. Padding for workers’ shoulders should be provided when they will be carrying heavy lumber.

Clerical/professional workers might have less risk of sustaining a low back injury with ergonomically appropriate chairs and workstations. This need not be expensive. Having an ergonomist show employees a proper workstation set-up and providing instructions on new chairs can go a long way.

Lacerations caused by non-powered tools and broken glass account for the most frequent and expensive injuries in the service/hospitality industry. Employers should be especially vigilant about training workers to use tools and ensuring broken glass is cleaned up quickly and thoroughly.

Modify schedules/tasks. Knowing that more injuries are prone to occur during certain times can help employers determine when to require certain tasks be undertaken. The riskiest work should be avoided during times of high injury frequency, such as 10 a.m. for many industries, as well as early afternoon in construction/natural resources and clerical/professional, and 9 p.m. for service/hospitality.

Conclusion

Insight into when and how more workplace injuries occur can help employers/payers tailor their prevention strategies. Data from Pinnacol and other sources can be invaluable in protecting workers and reducing workers’ compensation costs.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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: Workers Comp Loss Prevention

Writing the Perfect Independent Medical Exam (IME) Letter

October 10, 2018 by Michael B. Stack

On many occasions, members of the claim management team need to write a cover letter to the independent medical examiner. This is an important part of defending a workers’ compensation claim for mean reasons. It includes preparation, planning and having accurate information. When drafting this letter, it is important to consider a number of factors and include the right questions.

Expert Foundation for Medical Opinions

It is important that your expert has the proper foundation to provide their findings and opinions within a reasonable degree of medical certainty. As part of your cover letter, consider asking for the following information:

Please set forth the amount of time that you spend with «Name of Employee» in your evaluation.

Please set forth the medical records which you reviewed as part of your evaluation.

Information on the Injury and Its Nature and Extent

It is important to demand precision for your medical expert. Help ensure you receive the information you need by asking for the following:

What is your diagnosis and prognosis of «Name of Employee»’s «Body Part/Condition»?

What is the substantial contributing cause of any diagnosis you make? Further, what is the etiology of any diagnosis you make?

If there is a question as to whether the work activity contributed to the condition, you might want to consider asking:

In your opinion, did the claimed events of «Date Here,» aggravate, accelerate or otherwise substantially contribute to the onset and progression of «Name of Employee»’s diagnosed condition?

Otherwise, it is important to verify the condition is work related, along with its nature and extent.

In your opinion, did «Name of Employee» sustain a work injury on «Date Here»? If you find that «Name of Employee» sustained a work injury on «Date Here,» was that injury permanent or temporary in nature? If temporary, how long did it last?

If there is more than one substantial contributing cause to «Name of Employee»’s condition, please apportion responsibility for any medical care and treatment, surgery, disability and permanency for these injuries.

Other Matters to Consider

The IME can be used to determine a number of other legal issues. Maximum medical improvement or the “end of healing period” is one of these important matters for the expert to address. The payment of ongoing benefits can depend on this status. Be sure to consider asking the following:

In your opinion, has «Name of Employee» reached Maximum Medical Improvement for all diagnosed conditions? If so, when did the Employee reach Maximum Medical Improvement? If not, when would you expect the Employee to reach Maximum Medical Improvement for all diagnosed conditions?

Issues concerning permanent partial disability are also important to consider asking about:

Did «Name of Employee» sustain any ratable permanent partial disability, pursuant to the workers’ compensation permanency guidelines as a result of the work injury of «Date Here»? If so, please state what you would attribute any permanent partial disability, citing the specific section in the workers’ compensation permanency guidelines?

The need for future medical care and treatment is also important. Be sure to ask about the following matters:

Has «Name of Employee»’s medical care and treatment been causally related to the (claimed events) events of «Date Here» to his/her «Body Part/Condition»? Why or why not?

Has «Name of Employee»’s medical care and treatment been appropriate under the workers’ compensation treatment parameters (if applicable)? Why or why not?

What medical care and treatment do you propose «Name of Employee» undergo, if any? Also, could you please state what its frequency and duration would be for any recommendations that you have.

Is «Name of Employee» in need of any restrictions on his/her ability to perform activity, if any? If so, please state what restrictions you would place on «Employee»’s activity. Also, please state what you would attribute the need for any such restrictions?

In your opinion, is «Name of Employee,» capable of sustained gainful employment with regard to his «Injury Here,» and if so, what restrictions, if any, would you place on his work activities?

Is the Employee undergoing functional overlay for secondary gain?

Please provide any additional relevant comments.

Final Considerations

A well-written independent medical examination letter is clear, concise and free from bias. Remember that any letter sent to a medical expert is discoverable and can be submitted as evidence. By following these guidelines, members of the claim management team can ensure their expert’s opinion receives full consideration from a compensation judge.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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: Independent medical exam (IME)

The Workers’ Comp Lesson To Learn From The Kavanaugh Process

October 9, 2018 by Michael B. Stack

Hey, there. Michael Stack here, CEO of AMAX. So very big national news over the past weekend with the confirmation of Brett Kavanaugh as the latest Supreme Court justice of the United States.

Now, this was obviously a very politically charged and bitter process. And whether you are in complete support of Mr. Kavanaugh or complete opposition, it’s not for me to tell you whether you were right or wrong, that’s up for you to decide. But there was one thing out of this process that struck me that I think we can all learn and apply to our work comp program and it’s the importance of this line here right in the middle.

Kavanaugh Process Had Hard Line of Separation

In the Kavanaugh process, this line was very clearly defined. You were either in support or you were in opposition. Now, there are some lessons in politics that we can use as examples to follow and there are some lessons that we can use as warnings, so let’s talk about this process now.

Don’t take this left and right now as having anything to do with politics because it doesn’t. Now in worker’s compensation, there’s really somewhat two schools of thought. There’s the advocacy model, a claims advocacy model, and more of a litigation type of model. Now on this advocacy side, you’re looking out for the employee’s best interest. You’re working together as a team. You’re looking to give them the best medical support. You’re establishing trust, you’re communicating, you’re sending a get well card. You’re going to visit them at the hospital and you’re trying to get them back to work in a timely fashion, working together as a team to lower your costs and improve those outcomes.

Now, some in opposition to that will say, “Well, that’s kind of maybe a little bit soft,” that you’re just skipping through the flower fields, hoping that everything is right and you’re just kind of la, la, la going around and everyone’s great and we’re just going to look out for everyone’s best interest and it’s all gonna work out.

So that opposition model will hold the mindset often of this litigation mindset and say, “Well, no one’s going to pull one over on me. If my employees are committing fraud, I’m going to crush them and I’m going to deny their claim,” etc. etc. etc. And on that goes.

Politics Has Positive Examples and Warnings

Here’s the lesson that we need to learn from this process and we’re looking at this hard line of both of the positive examples and the warnings is that in worker’s compensation, these are actually the same thing and should be the same thing and they should all be working together all at the same time. So here’s what I mean by that.

Is that yes, there’s a very hard line in the middle and this needs to be very clearly defined in your program just like it was in the Kavanaugh process, but at the same time, this litigation mindset also needs to be over here and here’s what I mean by that, is you start with the advocacy model. You start by looking out for your employees’ best interest. You start by setting expectations. You start by establishing trust. You start by giving them the best medical, getting them back to work, providing a transitional duty job that’s going to create a better outcome and lower your costs, but at the same time you’re also doing a thorough investigation.

Claims Advocacy & Litigation Work Together in Tandem

You’re establishing what actually happened in that claim. You’re establishing good information in order to make a good decision on what is actually happening and you’re setting an expectation for your employees as well that they need to come to the table. We’re going to give you all the support we can, but we also have an expectation for you to participate in the process and when you do have this line very clearly defined in the middle and when your employee is trying to pull one over you with a fraudulent claim, they’re malingering. They’re trying to get extra medical treatments included when they shouldn’t be.

You have that very clearly hard line defined and you’ve already done the work at the beginning of the claim to establish your position and so then you can deny that claim appropriately with a very strong and very powerful litigation aspect of your claim as well. Both of those philosophies need to be working together in tandem and only when your employee passes that hard line in the middle is when you deploy that litigation mindset.

Again, I’m Michael Stack, CEO of AMAX, and remember your work today in workers’ compensation can have a dramatic impact on your company’s bottom line, but it will have a dramatic impact on someone’s life. So, be great.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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: Risk Management

3 Common Defenses Against Illegitimate Workers’ Comp Claims

October 4, 2018 by Senior Editor

Members of the claim management team need to be proactive when reviewing their workers’ compensation injury files to make accurate determinations of claim compensability. A careful review is required, and only legitimate claims should be paid. Failure to do so means workers’ compensation programs will incur unnecessary costs and excessive litigation in the future. When doing these careful reviews, it is important to know the following common defenses against illegitimate workers’ comp claims.

Is the Injured Party an Employee?

Workers’ compensation programs are only responsible to cover employees of an insured. In many instances, the issue of whether the injured party is an employee is clear-cut. However, in cases such as construction cases or other specialized professions such as consultants, this is an issue that requires careful legal review.

The term “employee” is generally defined by statute or administrative rule. Basic components of what constitutes an employee include the following elements:

A person who performs services for another for hire;

An alien (regardless of legal status), minor, apprentice, or members of state law enforcement agencies;

County assessors, elected or appointed officials who fulfill a function of city, county or state governments; and

Other individuals, regardless of compensation, who fulfill the function of a company – g. – volunteers.

When it comes to “independent contractors,” a myriad of rules and case law interpretations can apply. Factors to consider include:

The issue of “control,” and whether the employer controls the means and manner by which the work is performed;

The method of payment to the person. Just because someone receives a W-9 does not mean they are not an employee;

Determination as to who furnishes tools and materials used to perform a job or task; and

The ability to discharge the worker (or whether the job ends when the work is completed).

Intoxication Defense – The Bar is Not Necessarily the Limit

Alcohol and drug use continue to be an issue when it comes to workplace safety. Use of these substances while performing work duties can result in a denial of primary liability if an injury occurs. In order to successfully assert this defense, the employer and insurer must demonstrate the following:

The employee was intoxicated at the time of the injury; and

The intoxication was the proximate or legal cause of the injury.

While this looks relatively simply to assert with success, the reality is courts will scrutinize these matters. Extreme examples in case law include a highly intoxicated construction worker obtaining workers’ compensation benefits after admitted he drank alcohol heavily just prior to a serve fall from height. Kowalik v. Martinson Construction, slip op. (MN WCCA 7/8/04), sum aff’d 688 N.W.2d 332 (Minn. 2004).

Prohibited Acts Defense – Is it the Right Defense?

Rules are designed to be followed and ensure workplace safety and injury prevention. It is commonly held that an employer/insurer may avoid liability for an injury under the following conditions:

Where an employer expressly prohibits the doing of a certain specific act;

The employee engages in the prohibited conduct in a manner of disregard, of which is not reasonably foreseeable to the employer;

The violation takes the employee outside the scope of his employment; and

The employee sustains an injury resulting from the prohibited conduct.

While this defense seems clear-cut, courts have generally required a high level of proof for them to be successful. Common errors on the part of an employer include failure to have the specific prohibited act written into policy and communicated to its employees, and failure of the employer to enforce its safety and/or prohibited acts policies consistently.

Conclusions

Members of the claim management team are on the front lines of matters of high importance. This includes investigation of a claim and issuing denials for illegitimate workers’ comp claims when appropriate. When making these decisions, it is important for the claim handler to scrutinize the facts of the case and correctly apply the law.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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: Legal Doctrines

Understand the Legal Basics of Workers’ Comp Claim Denials

October 3, 2018 by Michael B. Stack

One of the most important and often difficult roles of a claim handler is to issue a workers’ comp claim denial. It is important that the claim handler conduct a diligent claims investigation and issue denials that are supported by the facts of the claim and the law. Failure to do so is not only unethical but contrary to the letter and spirt of the law.

Back to the Basics – “Arising Out Of” and “In the Course and Scope”

Issuing a workers’ comp claim denial requires understanding a basic premise of all workers’ compensation laws – both “arise out of” and “in the course and scope of” the employee’s employment. This is a legal standard that is complex to understand and depends on the facts of each case. When analyzing these threshold standards, it is important to understand the following:

Arising Out Of: This generally refers to a factual determination of whether the injury occurred within the parameters of one’s direct work In other words, there must be evidence of a causal connection between the injury and the employment. Courts often struggle with issues concerning whether there was an “increased risk” presented by the work environment that is tied to the injury. Factors that are subject to litigation and interpretation include slips/falls on various surfaces (flat hallways, stairwells, ice on sidewalks, etc.), assaults/actions by third persons and idiopathic injuries; and

Course Of: Determinations regarding this element are more clearly defined, but also create concern and litigation. Generally, this question involves one of the time, place, and circumstances under which the accident/injury occurs. Notwithstanding its appearance, questions of compensability also include litigation when it concerns the hours of employment (breaks, meals and errands), ingress/egress issues and traveling employees.

When considering these issues, it is important for the investigation to involve questions as to specific activities involved and whom else may have been involved in the injury.

Pre-existing Conditions and Questions of Compensability

The presence of a pre-existing condition does not necessarily preclude the compensability of a work-related injury. Given the rather liberal standard of what constitutes a “personal injury,” the better question that needs to be asked is whether the work injury or activity “aggravated or accelerated the underlying condition.” If this is the case, more often than not the claim will ultimately be found to be compensable.

When investigating these matters, obtaining the proper medical evidence is key to any investigation. Areas of concern should include the following:

Chiropractic care and treatment;

The existence of prior imaging, including MRIs, CT scans and EMGs; and

History of athletic or MVA related accidents/injuries.

Notice and Statute of Limitation Defenses

Most workers’ compensation statutes require an employee report their injury promptly. There are also limits as to when an employee can obtain a report from their work injury. This is where it is important to understand how notice and statute of limitation provisions can prevent recovery and serve as a valid legal defense to a claim.

Notice Defense: An injured worker is under the legal obligation to report their work-related injury in a timely manner. The rationale behind this concept is this allows the defense interests a reasonable amount of time to investigate a claim and prevent the spoliation of evidence. Notice defenses are often not successful given the fact “constructive notice” is often imputed on the employer. It also comes down to a question of credibility of the employee. Notwithstanding these limitations, it is something to consider when defending a claim.

Statute of Limitation Defense: Once a workers’ compensation injury is reported, there is a time limit place on the employee for them to make a claim for In many instances, the statute of limitation defense is limited to a period of six years. What this means is if the employee reports and injury, but does not incur wage loss or medical benefits within the prescribed time period, they are forever barred from seeking benefits related to the matter. This defense is used to deny claims made on trivial injuries and provides certainty.

Conclusions

Members of the claims management teams are on the front lines when it comes to claims investigations and determinations of primary liability. Issuing a proper workers’ comp claim denial includes determining if the incident falls within the parameters of the workers’ compensation act and other issues of liability. This requires a claims handler understands the law and is able to investigate a claim to make good faith determinations regarding compensability.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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

8 Tips to Investigate Work Comp Claims Like a Rock Star

October 2, 2018 by Senior Editor

Members of the claim management team wear many hats. One of these includes the need to investigate claims and make accurate factual and legal assessments regarding primary liability. This includes both knowledge of the law and medicine in order to succeed. While claim handlers cannot be expected to be masters of both, they can learn to become a rock star when handling these matters to promote an efficient workers’ compensation program.

Start with First Report of Injury

The First Report of Injury is usually one of the first documents that is generated following a work injury. This form is generally specified by the state’s industrial commission, but can also take the form of a company-specific form. It is also a document that is submitted to the insurance carrier following the report of the injury and serves as the basis for the claims investigation.

First Reports of Injury do have their limitations. It is important to remember the following when reviewing it:

The form can become inherently biased as it is something usually prepared by an employer representative. Be sure to know who completed the form, when it was completed and obtain additional background information from the person completing the form; and

Make sure the form is completely filled Important information that should be included are the names of potential witnesses, the mechanism of injury and where the employee received medical care and treatment.

Always trust, but verify the veracity of information on this form.

Recorded Statements from the Employee and Witnesses

A top-notch member of the claim management team will also be proactive and complete when taking a recorded statement of the employee. When performing this task, it is important to be mindful of the various state guidelines as to when this can take place. Important tips to remember include:

Obtain as much detail as possible. This includes specific information about how the injury occurred. This is especially important if the claimed injury involves a repetitive use type claim;

Avoid taking unnecessary statements. It may be an important consideration NOT to take a recorded statement if it is only being done to confirm the obvious; and

Questions as to admissibility may come into play later on down the road. Items to remember include having the employee review and sign a transcribed copy of the statement afterward in a timely manner. Failure to follow these guidelines can prevent it from being admitted into evidence later on.

The evaluation and preservation of witness testimony is also important to workers’ compensation claims. This is especially important when causation resolves around the alleged mechanism of injury. Different rules and procedures may apply when it comes to these third-parties. Obtaining cooperation may also be an issue to consider.

Records, Records, and More Records

Obtaining documentary evidence can also be important to various workers’ compensation claims. There are several types of documents and records a pro may consider when investigating a claim:

Medical records and authorizations: It is important to know and understand the medical condition and diagnosis of an injured worker. It is also essential to ascertain any prior injuries or conditions that may be present. A complete set of records is a must when it comes to the independent medical examination and ensuring proper expert foundation.

Industrial Commission records: Most states keep prior workers’ compensation records on file within the state agency responsible for overseeing the workers’ compensation act. An authorization is likely required in order to obtain these records given state data privacy laws. These records are key as they can contain a wealth of information on an employee’s prior medical history.

Central Index Bureau records: The Central Index Bureau (CIB or ISO report) is another important place to obtain background information on an employee. These records also detail other information on prior insurance related claims. While these records may not be admissible, they can likely lead to other discoverable information.

Conclusions

Being a great claim handler requires hard work and dedication to one’s job. It also includes basic knowledge of knowing where and how to find information. It is important to learn the various tricks of the trade to become a rock star when handling workers’ compensation claims.

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://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