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.

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: https://blog.reduceyourworkerscomp.com/

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

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

With the public bombardment of attorney advertisements, it is becoming harder for the claims adjuster to work directly with an injured employee.  The plaintiff attorney advertising is designed to get the public to think that they need attorneys for everything. However, with proper claims handling, the claims adjuster can still control the workers’ compensation claim.

Once Attorney Hired, No Further Contact with Employee

Once the employee has retained counsel the adjuster can have no further direct contact with the employee.  The adjuster cannot advise the employee to terminate a relationship with their legal counsel.  The adjuster cannot tell an employee not to retain legal counsel.  While some employees can be very difficult to deal with and extremely demanding, the adjuster can never tell an employee to get an attorney.  If asked about getting an attorney, the adjuster should tell the employee it is their decision on whether or not they hire an attorney.  The adjuster should request a letter of representation from the employee’s attorney as soon as notified of their existence.

The adjuster may reevaluate the claim when an attorney appears, but the adjuster should not be stampeded into an excessive change of opinion.  Claims have been settled for less with attorneys than they might have been settled with the employee direct.

The adjuster will price the settlement values of the workers’ compensation claim based on the facts and exposures regardless of legal representation.  The injured employee will determine after the disposition of the claim whether or not the attorney was worth it and needed.

Adjuster to Maintain Positive Contact with Employee Before Attorney Representation

Prior to an attorney representation, the adjuster should maintain a direct dialogue and interface with the claimant.  This is accomplished by showing empathy and concern for the person and injury.  The adjuster should not allow sympathy to overrule the facts and necessities of the loss.

The adjuster can maintain control of the claim by prompt contact, kept promises, returned telephone calls, and questions answered with fact, law, and honesty.  Explanation of all steps as to what will happen, when it will happen and how it will happen, builds confidence of the employee in the adjuster’s professionalism.

All of these steps may not keep the employee away from an attorney.   Nor may it prohibit a request for a hearing, even if the adjuster works in the same professional manner with the claimant’s attorney.  Many attorneys receiving such consideration will usually delay filing for a hearing and are more apt to be receptive to a prehearing resolution of the claim.  (Some jurisdictions have hearings in front of an official from the work comp board, while others will have an industrial commission, and others used the court system of their state).

First Notice of Claim Could Be Request for Hearing

On the other hand the first notice of a claim may be by a request for a hearing.

Regardless of when or how a hearing request arrives, the adjuster is under the gun to process the legal papers as fast as possible.   Most hearing requests must be answered in a specific time frame, often 30 days, but some jurisdictions have a shorter time frame of 20 days from the date the employer is notified.  If the answer period is going to expire before an answer can be given due to investigation needs, the adjuster should request an extension of time from the employee’s attorney.  The adjuster should attempt any disposition that might be possible before referring to defense counsel.

The hearing request should be sent to defense counsel at once by the adjuster.  The adjuster will need to keep the claim file on a daily diary until the employee’s attorney agrees to an extension of time, or until the adjuster has employed defense counsel to respond to the hearing request.

The adjuster should send defense counsel a copy of the file with a covering letter outlining legal steps to take, and the adjuster’s summary assessment of the file.  The adjuster should provide written litigation management guidelines to the defense attorneys. The adjuster should request a litigation plan and a litigation budget. The adjuster should set a legal reserve for the defense cost. The legal plan should be the guide for setting the legal reserve.  However, until a litigation plan arrives from defense counsel, the adjuster can use an average of past legal costs for similar losses to set the legal reserve.

Stay with File Before and After Referral is Made to Defense Counsel

The adjuster should keep the file on a daily diary until the claim referral is acknowledged by defense counsel and an answer has been filed.

The adjuster should not abandon the file handling and management to defense counsel.  The adjuster is responsible for gathering the facts for the defense counsel.  If the file has recorded statements from the injured employee and other employees as witnesses, the adjuster should defer expensive depositions until absolutely necessary.  The adjuster should prevent needless litigation steps and not allow the defense attorney to use outside investigation without prior approval and need.

All specialist investigation or experts needs the adjuster’s approval. They are to be coordinated with the adjuster, the employer and the defense counsel.  The adjuster should control cost by the pre-agreement of fees and cost.  The adjuster should audit the billing by outside investigators or experts to be sure it is in keeping with the agreements.

If defense counsel needs information from the employer, the adjuster should obtain it. When a meeting or conference is necessary, the adjuster should be present with defense counsel and the employer.  If the self-insured employer needs to be contacted for disposition authority, it should be done through the adjuster.

Good adjusters know the value of the claim, can negotiate the settlement themselves, and should try to keep defense counsel out of settlement negotiations to limit legal fees.  However, when a case is in a hearing, arbitration, or statutory judgment the attorney may have to settle on the spot.  The adjuster should provide defense counsel with the necessary settlement authority. Telephone discussions for additional authority can prevail in these situations. If the self-insured employer input is required, the adjuster should comply.

The adjuster should control defense counsel reporting. It is not necessary for the attorney to parrot back factual information already in the file.  All that is necessary for the attorney to do is state how the facts will be used in the litigation process.  The attorney’s report should contain an opinion as to disposition.  A request for any additional investigation is necessary.  A time frame and necessary legal steps should be in the report.

Adjuster Critical in Management of Attorney Costs

Once the initial assessment report is completed by defense counsel, it is necessary for the adjuster to receive supplemental reports for current activities and opinions.  If legal research is necessary the attorney must discuss and get the adjuster’s approval.  Limitations must be set to avoid runaway costs.

The adjuster should have defense counsel eliminate from their reports all, or at least surplus copies of interrogatories, pleadings, depositions, and other legal information.  The attorney generally reports on the contents of these items and their impacts, so it is seldom, if ever, necessary for copies to come to the adjuster’s file.  Not only will this save attorney copy cost, it will reduce a cumbersome file.  If a need arises for these actual documents, the adjuster can always request them.

All defense counsel legal billings should be reviewed and approved by the adjuster.  The adjuster should check the defense counsel bill line by line to be certain there is no duplicity, overlap, or non-authorized handling.

The adjuster should be cognizant of excessive telephone and other uses.  The adjuster should supply photocopies of documents to counsel when possible so they do not have to copy.  The adjuster should before sending any file to defense counsel go through the file page by page and eliminate any duplicates, or needless paper.

When a case goes to a hearing and an adverse decision gives grounds for appeal, the adjuster should handle the appeal response period on daily diary until the defense counsel has filed the appeal.

Multiple Defense Relationships Should be Engaged

The adjuster should develop relationships with several defense counsel firms. It is recommended that the different firms be used simultaneously. This generates competition between the firms, allows for spreading work, and keeps the assignments on a fresh approach for service and thinking.

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: https://blog.reduceyourworkerscomp.com/

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

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

Proactive members of the claims management team need to be fully engaged on important issues.  This includes handling various questions of compensability that need to be answered on every claim.  Common questions include applying the law to the facts of the claim and often making decisions with little to no legal guidance.  Questions of jurisdiction are something all proactive team members must understand to run an effective program.

Questions of Jurisdiction

Issues of workers’ compensation jurisdiction vary from state to state.  It is important for members of the claims management team to understand the special rules that apply and seek legal counsel if they have any questions.

As a general rule, an employee is covered under a state workers’ compensation act in the state where they are hired or regularly employed.  When examining questionable claims from a jurisdictional standpoint, the following questions need to be asked:

• In what state did the injury occur?

• What state did the “last necessary act” of the hiring process take place? This is mainly a question in cases where the employee is hired via a telephone interview or travels to a different location during the hiring process.

• Where does the employee spend a majority of their time or work activities? This is something that needs to be examined in instances where the employee travels or works remotely.

Issues Concerning Concurrent Jurisdiction

In some instances, more than one state can have jurisdiction over a workers’ compensation claim.  Members of the claims management team should pay close attention to these cases and engage legal counsel as necessary.

Concurrent jurisdiction in workers’ compensation claims typically arises in instances where the employee was injured in one state but performs a majority of their primary work activities in another.  Depending on the text of a workers’ compensation law, or case law interpretation, it can also occur based on the nature of an employment contract or collective bargaining agreement through a labor union.

Investigating Claims with Jurisdictional Issues

Claims that involve jurisdictional issues require immediate action by members of the claims management team.  Failure to do so can have a negative impact on the insured and possibly result in penalties.

• It all starts with a quick investigation. Find out the specific location of the injury and determine what state it is in.

• Review the applicable state law regarding jurisdictional issues. There may also be an issue of “concurrent jurisdiction.”  This is the result of conflicting state workers’ compensation laws and may allow the employee to choose the more favorable location to venue their claim.

• Review applicable union and employment contracts. This includes a determination on how the employee was hired and where each actor (employee and employer representative) was at the time the hiring process was made official.

• Obtain the assistance of legal counsel as necessary. This may include a legal opinion on what exposures are present in various jurisdictions.  Using the insurance “roundtable” to discuss these matters is another option.

• Communicate findings to your claims management team and insured. It is important to do this promptly so thoughtful decisions can be made.

Conclusions

Although questions or jurisdiction are often clear-cut, it is important for members of the claims management team to understand the nuances of this confusing issue.  It all starts with a prudent and effective investigation, understanding of the law and use of legal counsel when necessary.  By taking the time now, all claims handlers can reduce workers’ compensation costs and confusion by adding jurisdictional matters to their initial survey of all incoming claims.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is 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: https://blog.reduceyourworkerscomp.com/

©2017 Amaxx LLC. All rights reserved under International Copyright Law.

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

Is your litigation rate higher than you’d like? Do you know why?

There are myriad reasons injured workers hire attorneys to defend them, but there is often one overarching theme: fear.  By taking simple but highly effective steps, you can reduce the anxiety and significantly lower your litigation rate.

Why Hire Attorneys

Put yourself in the shoes of an injured worker, and you can begin to understand what they fear and how that drives them to hire attorneys. Say you’ve been in a particular job for several years, are doing well and suddenly you’re involved in an incident that renders you unable to work. And let’s supposed you like most people are unfamiliar with the specifics of the workers’ compensation system.

Now suppose you’ve been at home nursing your injury for a week. You’re in pain, the bills are piling up, your spouse is asking questions, and you haven’t yet heard from anyone connected with your employer or the workers’ compensation system. What would you do?

That scenario, in a nutshell, describes what far too many injured workers go through. Increasingly, they have fear:

• Fear they won’t have money to pay their bills.
• Fear they won’t have access to or money for proper medical care.
• Fear they will lose their jobs.

While sitting at home seeing TV commercials for plaintiffs’ attorneys, many injured do what might be considered normal – they call a lawyer.  This situation is typical, and yet avoidable in the workers’ compensation system.

Showing empathy, communicating, and providing information are the primary tools to prevent a worker in the above scenario from hiring a lawyer. Creating an atmosphere of trust before injuries will help lower your litigation rate even more.

Eliminate the Fear

Knowing the fears mentioned above can help you avoid them. Here are some simple steps:

1. Communicate. Getting in touch with the injured worker as soon as possible after the injury is crucial. The message should convey that you value the employee and want him back on the job as soon as he is ready. You can do this in a variety of ways:

• Call. Just as you might call a worker who was out due to a non-work related injury, a brief phone call to inquire as to how the worker is doing shows you care about the person. You can also reassure the employee that his claim is going through the workers’ compensation process and let him know he will hear from those who are handling his claim.
• Send a card. If another worker sustains a severe injury while boating over the weekend and is out of work, you might send a get-well card, right? It should be the same for an injured worker. They also want to know their employer and coworkers are concerned and thinking about them, and – especially in the case of injured workers – that their jobs will be waiting for him upon their return. A simple, inexpensive card with good wishes can make a world of difference to someone in pain and afraid.
• Text. If it is a younger worker and someone who prefers texting to phone calls, send one. It can be short, ‘how are you doing today’ message.
• Email. A quick email sends the message that you are thinking about the worker. You might also include something about the company – some news or a funny incident that happened with the employee’s coworkers.

2. Explain the System. Those of us in the industry know the complexity of workers’ compensation. Imagine you are an injured worker, thrust into the middle of this process you don’t understand – or trust. You’d need someone or something to explain it to you. There are a couple of ways to do this:

• Employee Brochure. A short, simple brochure should be given to all injured workers. It should tell them:
  • What to expect. It should say, for example, that the visit to the emergency room and follow-up medical bills will be paid. It should also include information about the workers’ compensation system and when and how determinations are made as to whether a claim will be accepted. It should also include a brief section explaining the consequences of fraud. You want the injured worker to know you care about them, but that you won’t tolerate abuse.
  • Who is in charge? Unless the company is self-insured, it should explain that the X company is the employer’s workers’ compensation insurer and that someone from that organization will contact the injured worker.
  • When/how. It should explain how and when the worker will receive benefits.
  • Perhaps most importantly, it should convey that you want the injured worker to return to the company as soon as possible, and provide information about light-duty work and other aspects of the employer’s return-to-work program.

3. Create an Environment of Trust. Some organizations have a culture that discourages employees from reporting on-the-job injuries. There’s a message that doing so can hinder chances of a promotion or transfer, or may even result in firing. Ultimately, some injured worker in such a company will hire an attorney. Instead, you want to create an environment of transparency and trust. If your employees trust you, they are much less likely to engage attorneys when injured.

Talking openly about the workers’ compensation system is one way to do that; whether during safety meetings or through internal newsletters or emails. A brochure should be given to all employees to explain the workers’ compensation process and what to expect if injured, as well as provide information on how to report workplace injuries and illnesses.

Conclusion

Injured workers, like all of us, want to be treated with dignity and respect. Being injured and thrust into a system, they don’t understand people more vulnerable and insecure. By reaching out to them, showing empathy and explaining next steps, you create a trusting environment and can significantly reduce your litigation rate.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is 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: https://blog.reduceyourworkerscomp.com/

©2017 Amaxx LLC. All rights reserved under International Copyright Law.

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

Under any workers’ compensation act, an injury is compensable if it “arises out of” and occurs within “the course and scope” of an employee’s work activities.  One area that is subject to frequent litigation is instance where an injury occurs during work breaks, or other non-work related activities. These personal comforts give members of the claims management team pause as to whether such an injury is compensable.

A Not So Uncommon Scenario

It is break time at the Acme Widget Company. Joe Friday missed breakfast and the company cafeteria is not yet open for lunch. Thankfully, there is a great coffee and donut shop across the street, which is frequented by employees before, during and after work. Joe decides to head over and grab a fresh jelly donut and cup of coffee. While carefully crossing the street he is struck by a car that did not stop for a traffic signal and suffers a broken leg. Would this claim be compensable?

Understanding the “Personal Comfort” Doctrine

The “personal comfort doctrine is a legal principle created by the courts to address the nature of typical workplace environments. Under this doctrine found in most jurisdictions, employees can engage in activities to provide personal comfort and still be covered under the protections of a workers’ compensation act. Such common activities include using a restroom, smoking or coffee breaks, eating food and drinking non-intoxicating beverages.

Application of this doctrine varies in every jurisdiction. In reviewing such matters, courts will examine various issues. These factors include:

• Whether the activity was “contemplated” as part of the employment;

• The nature of the activity prior to the accident; and

• Any benefit to the employer when the employee engages in the activity resulting in injury.

Application of the Doctrine

Most workers’ compensation acts are interpreted in a light favorable to the employee. This result in injuries occurring during normal work hours, but off the employers premises or not directly related to one’s position, to be compensable.

Examples of injuries successfully using the personal comfort doctrine are numerous. In one example, an employee was crossing a street to get a pack of cigarettes. Although the injury did not occur on the employer’s property, the court found injuries similar to Joe Friday’s to be compensable.  Holly Hill Fruit Products, Inc. v. Krider, 473 So. 2d 829 (Fla. Dist. Ct. App. 1^st Dist. 1985).

The reasons for this finding include the following:

• The employee’s conduct was an “inevitable attendant danger;”

• The actions of the employee were conducive to a pleasant work environment; and

• While the employee was off the worksite for a short period, he did not remove himself from his employment activities.

Avoiding Unnecessary Workplace Exposures

Proactive members of the claim management team can work with interested stakeholders to reduce exposures and avoid “personal comfort” doctrine issues. Proactive steps can include:

• Providing or making essential items available to employees on the worksite or premises. This includes having refreshments available free of charge or at an on-site store. By doing so, they maintain more control of their worksite;

• Prohibiting smoking on company premises. Employers are recognizing the health benefits of tobacco-free workplaces. They can also coordinate with their health plan providers on accessibility of smoking cessation products or services to reduce the dependence on cigarettes; and

• Establishing clear company policies regarding departure from the company premise during the workday. This can include a clear statement that leaving the workplace for any non-work related reason removes them from their employment and workers’ compensation activities.

Conclusions

It is important for interested stakeholders to understand the “personal comfort” doctrine.  This can assist with properly managing a claim where it is at issue and help employers minimize their risks to promote a safe work environment.

Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is 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 of COMPClub, an exclusive member training program on workers compensation cost containment best practices. Through these platforms he is in the trenches on a working together with clients to implement and define best practices, which allows him to continuously be at the forefront of innovation and thought leadership in workers’ compensation cost containment. Contact: mstack@reduceyourworkerscomp.com.

©2016 Amaxx LLC. All rights reserved under International Copyright Law.

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

There is never a requirement under a workers’ compensation act that an injured worker retain legal representation.  While more injured parties seek legal representation at some point during the life of a claim, the pro se litigant can cause a special series of problems.

What does it mean to be Pro Se?

The term “pro se” is comes from the Latin phrase, which means “for oneself.”  This term was later adopted in the English common law and associated with a litigant who represented them self in a legal proceeding.

Self-Representation in Workers’ Compensation

In workers’ compensation cases, parties will often not be represented by an attorney at the onset of a claim.  Due to the legal complexities of workers’ compensation cases, a vast majority of disputed cases result in the claimant obtaining legal representation.  This includes professional assistance to navigate the rough waters of litigation and advise the claimant regarding settlement or resolution of their claims.

The Double-Edged Sword of Claimant Representation

Members of the claim management team, defense attorneys and employer representatives should always treat the injured worker with dignity and respect in all circumstances.  In many instances, the interested stakeholders on the defense side should go the extra mile to avoid conflict, which results in the claimant obtaining legal representation.  On the other hand, competent counsel for the injured worker is not always bad.  Unrepresented parties will not typically understand the workers’ compensation benefit structure.  This can result in frustration and delay for all parties.

Treat Unrepresented Employee With Dignity & Respect

The unrepresented workers’ compensation litigant will likely have no prior legal training or background.  This can result in delays in settlement and cause confusion later on.  When dealing with the unrepresented, it is important to do the following:

• Provide a disclaimer that the claim management team and/or defense attorney is NOT their legal representative. The consequence is they cannot provide legal advice to the worker, nor can they provide instruction on future actions that impact entitlement to benefits;

• Continue to treat the unrepresented employee with dignity and respect. This includes all written and verbal communications; and

• Instruct the injured worker to have their attorney contact the claims management team and/or defense attorney if they change their mind and obtain legal counsel.

Reaching Settlement with the Unrepresented Claimant

Settling workers’ compensation cases with can be difficult.  While all litigants are held to the same standard as an attorney practicing workers’ compensation law, state industrial commissions and compensation judges will take extra steps to ensure the integrity of the law is upheld and the pro se litigant understands fully the settlement agreement.  Parties drafting such settlement agreements may want to consider adding certain questions to the document to impress upon the employee and the courts the settlement was taken seriously.  Here are some examples to include:

ANSWER       INITIALS

1. Have you read the entire Stipulation?                                   _____              _____

2. Do you acknowledge that you have been provided

with the opportunity to be represented by your own

attorney, and that it is your own choice to have or not

have legal counsel review this Stipulation for

Settlement?                                                                                         _____              _____

3. Do you acknowledge that, by executing this

Stipulation for Settlement without legal counsel,

you agree to waive voluntarily your right to legal

counsel?                                                                                              _____              _____

Having the employee answer the question yes/no and initial the answer adds to the steps one might want to consider.

Conclusions

In some instances, a pro se litigant can be a challenge to interested defense stakeholders.  This will require those parties to take extra steps to ensure the integrity of the workers’ compensation act and protecting a settlement against future judicial scrutiny.

We recently learned some sad news that one of our long-time contributors to Workers’ Comp Roundup, Attorney Ted Ronca, has passed away due to health complications.  Ted was a wealth of knowledge in representing employers in workers’ compensation and a frequently used legal resource for questions and clarification by our primary blog writers, Michael Stack and Rebecca Shafer.

We pay a tribute to him with a compilation of some of this extensive writings. Because his library of articles is so large, and the information so valuable, we have broken it into 3 parts. Employers are recommended to use this information as a reference for workers’ compensation defense best practices.

Part 3 of 3:

Little Used Federal Laws Give Employer Disability Management Control

Employers interact with employee disability through a number of laws. Until now, there has been little attention focused on how to coordinate statutory compliance to achieve better overall results. Workers compensation, in particular, has operated with little or no coordination with other laws.

Three Critical Times Employers Should Seek Workers Compensation Advice

Work comp is a real time problem in progress. If you’re an employer, chances are you could use some, or much, advice. But advice often comes with an expiration date and, if not taken, will spoil faster than an open container of milk on July 4th weekend.

Employers Can Spot A Claim Months Before It Occurs

A witnessed, sudden, accident presents far fewer problems than a claim without a witness. Yet, many un-witnessed claims are quite real, stemming from long term degenerative conditions. Many of these claims are filed and flagged as highly suspicious.

3 Types of Medical Exams Employers Have Not Heard Of

Employers who are willing to make better use of claim tools already in existence around them can achieve precisely what they have been hoping, in vain, that their carriers will do for them. The tools are: Occupational Health and Safety Administration(OSHA) physical exam, Department of Transportation (DOT) medical exam, Americans with Disabilities Act (ADA) medical exams

The Employers Secret to Workers Comp Defense Lies in these Three Quotes

Three quotations are all an employer needs to understand handling difficult comp claims. Two are actual quotes, but the third – and best – was made up and appeared in a 1917 newspaper story.

Author: Attorney Theodore Ronca was a lawyer from Aquebogue, NY. He was a frequent writer and speaker, and represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years.

We recently learned some sad news that one of our long-time contributors to Workers’ Comp Roundup, Attorney Ted Ronca, has passed away due to health complications.  Ted was a wealth of knowledge in representing employers in workers’ compensation and a frequently used legal resource for questions and clarification by our primary blog writers, Michael Stack and Rebecca Shafer.

We pay a tribute to him with a compilation of some of this extensive writings. Because his library of articles is so large, and the information so valuable, we have broken it into 3 parts. Employers are recommended to use this information as a reference for workers’ compensation defense best practices.

Part 2 of 3:

Deny Work Comp Claims From Disallowed Unemployment

Can a worker who files a claim for unemployment and loses because of a justifiable dismissal then file for workers comp? Yes. And it happens all the time. The danger for employers is that the existence of the unemployment claim is not automatically known to the carrier or the New York Workers Comp board, causing many comp claims that could be defeated to be allowed at great expense, ultimately, to the employer.

Investigating Work Comp Fraud: Concealed Working Off The Books

If an employer has, say, a hundred or more workers who are semi-skilled, sooner or later there will be a comp claim in which suspicion grows that the worker has healed but is working off the books. This is a common problem in large metropolitan areas where activity is more easily concealed.

Injured Worker’s Personal Problems Lead To Dangerous Workers Comp Claims

There are classes of comp claims that start as ordinary reports of injury but quickly turn into claims nightmares. Among these is the younger worker claim in which an otherwise healthy person develops an inexplicably complicated claim. An explanation that needs to be considered is “trouble at home leads to trouble at work”.

‘See Attached’ Is Best Way To Complete First Report of Injury

The employer’s first report of a possible accident can be a dangerous trap when dubious claims are being reported. This is due to the fact that first injury forms are not designed to capture the information necessary to make decisions which are critical in the first days following an accident report. The decisions can be triaged into categories: there has been a clearly compensable accident, there has not been a work related accident, there has been a report which requires further investigation. (The second, there has been no compensable accident, also requires further investigation to document reasons for an objection.)

Defense In Depth On Work Comp Claims: The Employer’s Role

“Defense in depth” is a principal from conflict theory which promotes using several defenses in coordination instead of seeing them as separate defenses to be used one at a time. Sometimes, the phrase “mutually supporting” is used. In work comp hearings, defense issues often are identified and documented but they are not processed so that the use in hearings is enhanced.

Author: Attorney Theodore Ronca was a lawyer from Aquebogue, NY. He was a frequent writer and speaker, and represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years.

We recently learned some sad news that one of our long-time contributors to Workers’ Comp Roundup, Attorney Ted Ronca, has passed away due to health complications.  Ted was a wealth of knowledge in representing employers in workers’ compensation and a frequently used legal resource for questions and clarification by our primary blog writers, Michael Stack and Rebecca Shafer.

We pay a tribute to him with a compilation of some of this extensive writings. Because his library of articles is so large, and the information so valuable, we have broken it into 3 parts. Employers are recommended to use this information as a reference for workers’ compensation defense best practices.

Part 1 of 3:

What Your Employees Fear Most After A Work Comp Injury

Fear, silence, and uncertainty do more to drive workers’ compensation costs than is generally appreciated – and these factors are fairly simple to control through employer involvement. Attorneys in the field quickly learn that an unpaid medical bill is certain to drive a worker to a lawyer, but there are many other fears which will also do the same thing. Job security is perhaps the second greatest fear, but much else can cause dangerous anxiety. Your workers will quickly find themselves worrying about problems which don’t exist and can’t exist, but these problems will be very real unless someone communicates with them.

Two Basic Rules To Solve Workers Compensation Problems

Nearly all compensation problems are solved by employers if they follow two basic rules: 1. Communicate early, 2. Communicate thoroughly.

The Work Comp Claim Isn’t Over Until It’s Over

Yes, this article honors Yogi Berra, but not for the reason you might think. His now famous phrase, about a game (or a season) not being over until it’s over has become the archetype for a thought which is a) true, b) egregiously obvious and c) useless. But Yogi may well have the last laugh.

Warning For Employers: Social Security Problems & Consequences For Workers Comp

The trust funds for the Social Security disability benefits program are nearly exhausted and will be gone by 2016. What consequences are there for an employer’s workers compensation costs?

Pay Particular Attention To Work Comp Claims That Overlap With Other Laws

“Flexibility” when you’re involved in a claim of any kind, gives you options – and that means having several ways to deal with a problem. But flexibility can mean much more. It can also give an employer freedom of action; in addition all others involved in a claim do NOT have the same advantages that the employer has.

Author: Attorney Theodore Ronca was a lawyer from Aquebogue, NY. He was a frequent writer and speaker, and represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years.

Litigation is bound to happen at some point in your work comp program.  It could be that a case that was once compensable is now no longer deemed compensable.  It could be that you received a petition for hearing out of the blue from a former employee.  You can be added to the litigation other parties are having over a different issue.  Litigation is bound to happen.

The legal case can present itself many ways.  Some could be a clear disputed injury date, and another could be as vague as an occupational exposure injury of which you are 1 of 15 named defendants.

“We Do Not Have Any Exposure” Is Not Accurate

The important thing to remember is to look at the big picture in the case.  The plaintiff feels that something they did while working for you lead to them being injured.  The response of “we do not have any exposure” is not accurate.  Even the wildest case has exposure of some sort, and it is key to not overlook the merits of the case no matter the allegation.

I see many examples of cases that started off as being nominal and later it turned out the employer was responsible for a sizeable sum of money contributed towards the settlement.  This is due to the attorney/adjuster/employer not considering the case as a whole.  What starts off as an elbow injury can turn in to a shoulder or neck claim that could be post-surgical in nature, depending on how the injury occurred and the medical evidence.  With this type of claim, all of the sudden you have a larger case on your hands.

Petition Can Be Worded To Broaden The Scope Of Injury

Plaintiff attorneys also know how to word a petition.  If you look closely, rarely are they narrow in scope.  Words like “general” or “repetitive” or “occupational exposure” hold different weight in different jurisdictions.  The petition is worded this way in order to broaden the scope of the injury.  Instead of saying “left elbow” it may say “left upper extremity.”  That alone is a great example of the plaintiff counsel using wording to help their own case.

Any surgical case can have a large exposure in both in the medical and wage loss fields.  Certain states have Permanent Partial Disability (PPD) rating, and just this rating could mean the injured worker is entitled to certain ongoing future benefits whether they work at your factory or not.

Another area to consider is the potential lien exposure.  Not just from Medicare or Medicaid, but from other health insurance providers as well such as Blue Cross/Blue Shield, United Healthcare, and so on.  They will add themselves to the suit, and their lien interests have to be considered towards a settlement.

Choose Legal Council That Is Well Versed In Work Comp

Adjusters are trained to reserve cases on overall exposure and need to know early on in the litigation process if you have no intentions of returning a worker back to their job.  If you decide on this aspect 14 months later, you can expect a reserve increase to follow.

In order to settle cases on a timely basis, you need to have legal counsel that is well-versed in work comp.  They need to have a relationship with the Judges, plaintiff attorneys, doctors, etc. It is very important to choose counsel based on a referral or recommendation.  The attorney should know your factory, the layout, and the jobs involved.  It is only to your advantage to develop a personal relationship with your legal counsel.  The better they know you, the better they can handle your cases.

So keep in mind to look at the big picture in your litigated cases.  Look at it from the injured workers point of view and the motivation of the plaintiff counsel.  What are their next steps going to be, and how are they going to present their case?  If you can figure out the answers to those questions, you will end up resolving your litigation quicker, cheaper, and more efficiently than your industry peers.

Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is 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 founder of COMPClub, an exclusive member training program on workers compensation cost containment best practices. Through these platforms he is in the trenches on a monthly basis working together with clients to implement and define best practices, which allows him to continuously be at the forefront of innovation and thought leadership in workers’ compensation cost containment. Contact: mstack@reduceyourworkerscomp.com.

©2015 Amaxx LLC. All rights reserved under International Copyright Law.

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