Five Clues an Injured Employee is Dragging Out Their Workers Compensation Claim

Five Clues an Injured Employee is Dragging Out a Workers Compensation ClaimNow and then one comes across a claimant who knows the twists and turns of the workers’ compensation system. The claimant could be a dependable and good worker, but the employee is dragging out their workers’ compensation claim.

 

The insurance industry calls these people “career claimants.” When a background check is done, they have a list of prior claims a mile long. Having many prior claims does not necessarily mean they are bad workers; perhaps they are injury-prone. It is very interesting, however, when claims are filed, they are sneaky enough to do just enough to keep the wheels turning and drag out their workers’ comp claim to remain out of work or on medical restrictions. Odd how that happens…

 

Adjusters can use their defensive tools to get these claimants off workers comp. Even when adjusters do IMEs, surveillance, and speak with the physicians providing the treatment, nothing seems to get this type of worker back to full duty.

 

When claimants know too much about how the system works, they drage out their workers’ comp claim by:

 

 

  1. Having the Physician on their Side 

 

Physicians usually base opinions on evidence-based medicine. Tricky claimants know what to tell and what not to tell the doctor. They use the Internet as an information source. For example, if someone sustains a back strain, acceptable symptoms are researched to report without over-exaggerating the symptomology to cause the treating physician to see red flags.

 

Limited range of motion, muscle spasm, and bringing up pain complaints tell a doctor if the person is or is not hurt. The doctor proceeds presuming the patient is reporting honesty and may keep the patient on restrictions, on continuing treatment, and off work. This is where the independent medical examination (IME) comes into play. It is always good to have another opinion just in case the treating doctor is not being proactive in moving the patient along to full duty, especially if the subjective complaints do not match the objective evidence on examination.

 

 

  1. Rescheduling Doctor and Physical Therapy Appointments

 

Everyone has a life outside of work. However, constant rescheduling of medical appointments is a red flag for the adjuster. Maybe now and then a physical therapy appointment is missed, especially when working light duty. But, it is important to remember legitimately injured workers want to get treatment, heal, return to full duty, and not drag out their workers’ comp claim.

 

A typical lumbar strain does not necessarily prevent a person from being active or running errands, but if a trend arises of constant rescheduling — THINK — what else is going on besides the injured worker’s schedule? Surveillance is a handy tool to confirm suspicions. It is especially helpful if the injured worker is caught in a lie. If the worker reports to the adjuster therapy is missed even when off work and surveillance shows the employee doing yard work instead of going to physical therapy, that is evidence to suspend the claim due to non-compliance with the treatment plan provided by the doctor.

 

Hot Tip: One therapy office has a policy of charging the patient the full amount of the missed appointment unless given 24-hour notice. They present patients with this written policy at the beginning of therapy and make them sign indicating they understand they will be charged and their insurance will not be billed.

 

 

  1. The Claimant Knows the Lingo

 

One thing jumping right into the adjuster’s face is a claimant knowledgeable about the injury in medical terms. The average person does not use words like radiculopathy, impingement, and stenosis or know what they mean.

 

Even more striking is when a worker discusses a settlement or redemption early on in the claim. This behavior should lead the adjuster to believe the worker has been down the workers’ comp claim road before. Most times, when a background check is done, it shows prior litigation experience with prior employers. These are all red flags indicating you want to keep an eye on this claimant as they may be dragging out their workers’ comp claim.

 

 

 

  1. The Claimant is Off Work and Cannot be Found

 

When a claimant has a legitimate injury and is off work for a while, it is a good idea to do surveillance to get additional information. After a few days, if the video only shows the worker poking a head out of the front door to retrieve the mail, it is always a red flag. The person may have a prior claim history, broke restrictions, and the claim was denied or suspended.

 

Or even worse, when you go to do surveillance, the worker cannot be found anywhere. The worker might be staying at another location or at another property. When you talk to the employee, excuses are made about how pain is so disabling all that can be done is to stay home and rest. However, something is awry if you go to do surveillance and the car is not in the driveway.

 

 

 

  1. The Worker Misses a Few Therapy Appointments Every Week

 

Remember, injured workers with legitimate injuries want treatment so they can heal, return to work, and not drag out their workers’ comp claim.  In a red flag claim when a person goes to some treatment, but not all and not all the time, this means they are doing just enough to keep the claim alive, but missing just enough treatments not to get better.

 

The unsaid rule in claims is the longer a person is off work, the harder it is to get them back to work. This challenge is where a light-duty work program comes in handy. Light duty forces the worker to go to work. It also forces them to go to treatment, especially if one has to leave work to go to therapy and then return to work to finish the shift.

 

Doing just enough to keep the adjuster from disputing the claim shows the claimant knows a little bit about how the claims system works. As an adjuster, if a person makes 75 percent of the medical appointments, is that going to stand up in court if you pull the trigger and file a dispute or suspension?

 

 

Summary

 

Just one of these points does not mean your employee is cheating you and trying to drag out their workers’ comp claim. But, some smart claimants know how to work the system. If, as the adjuster, you spot one of these claims, it is your role to stay on top of every aspect of the claim. Make sure if workers miss appointments they have some documentation to support absences. The more pressure you put on them, the better result you will have in defeating unethical claimants at their own game.

 

 

 

Michael Stack - AmaxxAuthor 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.

5 Ways to Get the Most Out of Your Workers’ Comp Adjuster

Get the Most Out of Your Workers’ Comp Adjuster Depending on past experience with workers’ comp adjusters, you may or may not have an accurate picture of their daily work life. Every adjuster has a unique style. Sometimes that style meshes well with the way with an employer’s way of doing business and sometimes it may not. Whatever the personality may be, the adjuster has the same goal the employer does. And that is to move the claim to resolution by return to work, release from medical care, or to redeem the claim through litigation if needed.

 

A good percentage of workers’ comp adjusters have multiple insureds (employers) they work with, in multiple states. Some of these insureds are very demanding, and some are not.   Some are very open to new ideas to get injured workers back to work, and some are not. The adjuster is always a chameleon, blending the personality and way of working to match what the insured wants while at the same time trying to read and gauge the claimant to judge for any indication that there may be more to the injury than what appears on the surface.

 

Whatever the personality or work ethic of the adjuster that handles the account, below are 5 ways to get them to work harder. Working as an adjuster handling work comp claims is a very stressful, demanding, high exposure, and thankless job. In any scenario, the adjuster will do what it takes to get the job done on the files, but these 5 little tidbits of info we discuss below may be able to maximize the adjuster’s role.

 

 

 

The First Report of Injury is the first info the workers’ comp adjuster reviews when assigned to a new claim. Nothing irritates them more than having a lot of missing information. It almost can reflect the way the claim is going to unfold during the investigation. If an adjuster sees a half-completed injury report when they call and ask you about the details of the injury they are expecting the employer not to know anything about it. Completing the injury report will reflect the employer’s professionalism to the adjuster. Another insured may complete every line, and the adjuster will view that as “This insured is very detailed and involved and will be watching every move I make, so I better make the right moves to impress them right off the bat.”

 

 

Plus the adjuster has to obtain a lot of that information anyway. So it will save some time on the phone call if as an employer, you obtain the information before submitting the claim into the adjuster. State reporting requirements will demand the date of birth, social security number, complete address, and other additional info. So take the extra 10 minutes and complete the State injury form. This way the adjuster can get a good idea about what happened and can hit the ground running for the start of an investigation.

 

 

  • Stay involved and open to ideas

 

Not every employer is the same. They are different sizes, different types of people, different demands, and different cities. Everything is different, and this makes being an adjuster that much more difficult. The adjuster may not know that the employer does not have any light duty work at  the shop, but how deep have you as the employer looked? The adjuster may have ways to sneak a few of these guys back to work, and that will save the employer money. The adjuster’s job is to get injured workers back to work. Most of the time the roadblock to obtaining this is the employer, not the injured worker.

 

Let the adjuster come out to the shop (if they are local) and let them walk around and evaluate things. Talk a little bit about the other types of jobs you do that your injured worker may be able to do. Discuss not only full-time jobs but part-time as well. Part-time work is overlooked a lot, but any sort of savings is worth it. 10-15 hours of work a week is better than the injured worker sitting at home doing nothing but collecting a paycheck. Plus remember the old adage: The longer a claimant is out of work, the more difficult it is to get them back. Collecting 70% of pay in addition to saving on daycare costs or gas costs to name a few. Better to keep an open mind about getting the injured party back to work.

 

 

  • Return calls/emails to the adjuster

 

The workers’ comp adjuster has a lot to do every day. Claims are in various stages of a lifespan, and the job of an adjuster involves being on the phone a great deal. The new trend is to try and email as much as possible. It is a lot faster than a phone call, and it allows the other party receiving the email to get to it when convenient. Answer or return that email.  It does not have to be within the same hour, but it should be at least the by the end of the business day. The adjuster wants something or has a question they need to be answered.   Usually, the adjuster cannot move forward on the claim until the info is obtained. Do not be known as a slowpoke in getting the adjuster this information. They will respond in kind when the employer needs something.

 

 

  • Be polite

 

The workers’ comp adjuster usually deals with conflict. Conflict with different physicians and their opinions. Conflict with claimants over what is a work-related injury and what is not. Conflict with their managers on what to do on a file to get it to resolve. Conflict with plaintiff counsel over the facts of a case. Conflict with a claimant over a check not being issued or why the claim is still under investigation.   The list could go on and on.

 

 

So it is nice to give the adjuster some polite words now and then. A “please” and “thank you” can go a long way. Maybe take some time after a difficult claim is resolved and thank your adjuster for hours and hours of time put in to resolve the claim. Everyone appreciates the positive feedback and a good “thank you.”

 

 

  • Meet the adjusters face to face and show them around

 

Most adjusters work from home or in an office. They do not see their claimants. They do not meet the insureds. They are not at the doctor appointments. They are not on-site in the workspace. One thing to do is to meet with them first. Talk with your carrier/TPA about getting 1-2 adjusters to work the account.   Then invite those adjusters and the claims manager over to meet face to face at the workplace. Take them on a tour of the facility. Let them meet the safety team. By putting a face to a name, you have personalized the experience. And the more contact, the better the resolution on claims. The same employer/client relationship applies to the carrier/agent/adjuster relationship.

 

 

 

Summary

 

The workers’ comp adjuster has to handle many claims from many different employers. So make yours stand out from the rest. Take that extra time to build a relationship with the carrier/adjuster/TPA.  Claim results will likely be better.

 

 

Michael Stack - AmaxxAuthor 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.

18 Items in Your Work Comp Adjuster’s Three-Point Contact

Work Comp Adjuster’s Three-Point ContactTHE MOST IMPORTANT PART of and adjusters initial handling of a workers’ compensation claim is the contacts with the parties involved in the claim. The contacts are often referred to as “three-point contacts” which refers to the three principal players the adjuster is involved within every workers’ comp claim. The three principals are the employee, the employer, and the medical provider.

 

To successfully handle a workers’ comp claim, it needs to be investigated both timely and thoroughly. The contact with the injured employee, the employee’s supervisor and the employer’s claims coordinator, and the medical provider all provide valuable information to the adjuster in the handling of the workers’ comp claim.   Each of the contacts, if properly managed, allows the adjuster to maintain control of the developing claim.

 

 

Definition of Contact

 

A recent audit of a claims office found the definition of “contact” was not spelled out in the claims handling requirements or the company’s Best Practices. The workers’ comp adjusters were sending form letters to the employer and the employee saying “call me” on the day they received the assignment. Their supervisor was accepting the form letters as contact with the employer and employee. The adjusters and supervisor were bending the meaning of contact to their own purposes and not making proper three-point contact.

 

Three-point contacts are almost always be handled by telephone, except in severe cases where an in-person contact would be justified. With most adults having cell phones, there is no reason for not making voice contact. If the principals cannot be reached by telephone, a contact letter should be sent while continuing the effort to reach the principals by telephone.

 

The insurers who have quality Best Practices consider voice contact as “the exchange of information between the principals and the adjusters.”  Leaving a message on the employer’s or employee’s voice mail is not considered contact in the true meaning of three-point contact.

 

 

Timeliness of Three-Point Contact

 

Each workers’ compensation insurer and each third party administrator (TPA) has set their own time frames as to when three-point contact should be completed. Some insurers are requiring their adjusters or TPA to make three-point contact within 2 hours or 4 hours of the time of the accident. Other insurers and TPAs are being less stringent and requiring the three-point contacts to be completed within 24 hours or 48 hours of the time of the assignment.

 

Workers’ comp adjusters prefer the 48-hour goal of making three-point contacts as that is a relatively easy goal to make. Various studies, however, have shown that immediate (same day) contact has the most positive influence on the outcome of a case.

 

While the goal of the adjuster should be to make the three-point contacts the same day as the assignment is received, in reality, the other parties to the claim may not be available. Persistence is an absolute must for the adjuster. If the adjuster has left a voicemail for the employer, employee or medical provider’s office, the adjuster should call again if the other party has not responded by the end of the workday. The persistent adjuster will leave at least two voice mails the day the assignment is received and will follow up with a contact letter if a response is not received. The adjuster should continue to try daily to reach each of the principals of the claim until voice contact is made with them.

 

 

Employer Contact

 

Upon receipt of the new assignment, the workers’ comp adjuster immediately verifies coverage for the insured/employer. If there are no coverage issues or questions, the adjuster’s next step is to make contact with the employer.

 

The purpose of the employer contact is several fold. The Employer’s First Report of Injury has essential information the adjuster needs but normally does not contain all the information that would be of value to the adjuster in accessing the claim. By discussing the accident with the employer’s claim coordinator, the adjuster can learn additional information that may be helpful in the development and handling of the claim. Some of the information the workers’ comp adjuster can obtain from the claims coordinator includes

 

  1. Prior claim history of the employee
  2. Verification of the facts on the Employer’s First Report of Injury
  3. The return to work status or the disability status of the employee
  4. Description of job duties
  5. Availability of modified duty or light duty work
  6. Length of employment
  7. Identification of employee’s supervisor and witnesses to the accident
  8. Subrogation potential

 

 

If there are any questions about the circumstances of how the claim happened or any issue of any kind, the adjuster will need to also interview the employee’s supervisor about the workers’ comp claim. A recorded statement from the supervisor may be necessary if the facts of the claims are questionable, if the claim appears to be severe, or if there is the potential for subrogation.

 

If there are still questions about the claim after the adjuster has spoken to the employer’s claims coordinator and the employee’s supervisor, the adjuster should also interview any witnesses to the accident.

 

 

Employee Contact

 

The adjuster’s prompt contact with the employee will build rapport and assist in establishing a non-adversarial working relationship with the employee. When the adjuster establishes early contact with the injured employee, the probability of future attorney involvement is decreased. The adjuster is also in a better position to identify any compensability issues and to make timely payment of benefits, both medical and indemnity. If the claim is severe, the early contact with the employee will allow for immediate medical management.

 

When the adjuster makes the initial contact with the employee, the adjuster should consider a recorded statement if the accident is severe or there is potential for subrogation. Also, the adjuster should consider a recorded statement if there has already been inappropriate or excessive medical treatment, if there is a pre-existing condition, if the claim is for a serious occupational disease, if there were other employees injured in the same accident or if there any question of compensability. Whether the interview is recorded or not, the initial conversation with the employee should cover:

 

  1. The facts of the accident
  2. The identity of any witnesses
  3. A description of the employee’s job, including job title, job requirements, equipment utilized, etc.–  (this will assist the adjuster in arranging for an early return to work on modified duty or light duty)
  4. The details of the injury and the medical provider’s proposed treatment plan. This should include the medical provider’s diagnosis and prognosis, the employee’s comments about pain, medications, prior injuries, treatment issues, etc.
  5. The employee’s attitude about the employer, the accident, the medical treatment, the willingness to return to work, etc.

 

The adjuster, during the initial contact with the employee, should advise the employee of all state required forms that will be sent to the employee and in those states that require a medical authorization, advise the employee of the importance of signing and returning the medical authorization immediately. The adjuster should request a copy of any off-work notes from the medical provider. The adjuster should also advise the employee of the actions the adjuster will be taking and encourage the employee to contact the adjuster with any questions, issues or problems.

 

 

Medical Provider Contact

 

The medical provider whether an occupational injury doctor, a hospital emergency room or a walk-in clinic, should be contacted by the adjuster as part of the three-point contact. The adjuster purpose in contacting the medical provider’s office is to obtain the necessary information to determine the process the claim. They would include:

 

  1. The diagnosis
  2. The prognosis
  3. The estimated length of time before the employee can return to either light duty or full duty work
  4. The date(s) of the next medical appointment(s)
  5. Information on any referral to another medical specialist

 

The adjuster should advise the medical provider to send to the adjuster the complete medical records including the medical history provided by the employee, the doctor’s notes, the results of any testing and a copy of any off work slips provided to the employee.

 

 

Summary

 

The importance of three-point contact cannot be overstated. Getting the claim file off to a proper start has a major impact on the course of the claim and the adjuster’s ability to handle the claim fully and properly. By completing a timely and a thorough three-point contact, the adjuster sets the tone for the outcome of the claim.

 

 

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

Contact: RShafer@ReduceYourWorkersComp.com.

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

 

©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.

 

 

 

4 Ways to Discover Repeat Workers’ Comp Claim Offenders

Repeat Workers’ Comp Claim OffendersMost employees injured at work are honest and want to recover and return to their jobs as soon as possible. There are workers, however, who are repeat workers’ comp claim offenders, creating headaches for their employers and those handling their TPA/carrier.

 

Repeat workers’ comp claim offenders are annoying at best and their claims can be extremely time-consuming and expensive at worst. Before casting aspersions on these employees with multiple workers’ comp claims, or giving up altogether, there are steps you can take to determine a) if the worker is committing workers’ compensation fraud and b) stop him from sustaining repeat injuries.

 

 

Legit or Not?

 

While it may seem obvious that a worker who has frequent injuries is trying to game the system that may not be the case. Diligent employees who are willing to do whatever it takes to get the job done may take safety shortcuts or act in others ways that place them at increased risk of injury; the person may be just naturally clumsy, or he may be unaware of the proper ways to undertake certain tasks.

 

It’s important to separate those who are intentionally getting injured (or claiming to get injured)  from those who just need more and better training and education. Once that is done, you can address the issue(s) at play.

 

The key to determining why a particular employee has sustained multiple injuries and whether he is intentionally claiming injuries is to conduct a thorough investigation and let the worker know you are aware of it and concerned about him.

 

 

Steps to Uncover Intent

 

You want to find out why the worker continues to be injured. Several strategies should be undertaken before you jump to the wrong conclusion.

 

  1. Resist your first temptation. All employees deserve respect — even repeat offenders. Dealing with the same worker multiple times for injuries can be frustrating. But you won’t uncover the problem unless you approach each injured worker the same and evaluate each claim on its merits. That means giving the worker the benefit of the doubt — at least until and unless you determine something untoward is happening.

 

  1. Investigate the injury. This is always important, but especially so if the person has a history of injuries. The steps should include

 

  • Gather statements about the injury from the employee, supervisor, witnesses, and the treating physician. Try to understand how and why the injury occurred, the extent of the person’s injury and what he is or is not capable of doing during his recovery.
  • Determine causation. Talking with the physician and other stakeholders will help determine if the workplace was the actual cause of the injury, or if it was something else. Several steps to determine causation include

 

  • Evidence for a causal relationship – do studies support a link
  • Evidence of exposure – highest quality data are quantified personal measurements of the worker’s tasks, while lowest quality are job title or self-report of exposure
  • Other relevant factors – comorbidities, prior injuries, etc.
  • Judge the validity of the testimony – make a judgment call on what is true or false
  • Evaluate and conclude

 

  • Talk to the treating physician. You might get some insights into whether there is a specific problem causing frequent injuries with the worker. You might also determine that the worker is physically incapable of doing the job without risking injury. Even if the employee was cleared to do the work initially, something might have changed in his physical abilities.

 

  • Get peer reviews. If the treating physician is not forthcoming or if you suspect the physician is not providing the best treatment for the injured worker, have another physician intervene. The insurance carrier or TPA may have a medical provider who can speak directly with the treating physician and get answers.

 

  1. Consider root cause analysis. While a formal root cause analysis may be unnecessary, you want to look closely at all the circumstances surrounding the incident, especially if the worker gets repeatedly injured doing the same types of tasks. Rather than laying blame on the worker, you may uncover something else. For example, the worker may put the ladder he uses at the same height as another colleague who is much taller. That could force the worker to have to reach above his head, putting him at risk of injury. His physique may be such that the equipment he’s using is inappropriate for the specific task. Uncovering such a simple cause can be easily rectified.

 

  1. Talk to the injured worker. You may find there is a simple reason the person continually gets injured. Or you may get a sense the worker has something else going on

 

  • Unhappy with supervisor
  • Personal challenges at home. Problems with spouses and/or children can distract a worker, so he becomes sloppy with safety practices
  • Psychosocial issues
  • Anger at the company. The employee may feel overworked, or that he was unfairly passed over for a promotion

 

If your investigation leads you to believe the worker is truly a frequent claim filer, you should still treat him with respect but make his fraudulent actions more difficult. You want to investigate the claim aggressively. Also, any psychosocial issues of which you are aware should be shared with the claims adjuster and/or TPA.

 

You may want to find out if the worker has been a frequent claim filer at other companies. Doing an ISO claims search, for example, may point up other instances where the worker has filed multiple workers’ compensation claims.

 

 

Conclusion

 

Employees who file multiple workers’ comp claims can be a drain on money and other resources. If you have a worker who is often injured, you need first to determine if the person is experiencing legitimate injuries or abusing the system. Then determine how you can prevent further injuries or — in the case of a repeat offender — deal head-on with the worker and explain you will be watching him carefully and taking aggressive action up to and including termination.

 

 

 

Michael Stack - AmaxxAuthor 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.

Catastrophic Claims Handling Part 2: Team Approach, Preserve the Scene

Handling any workers’ compensation claims can be a challenge, but it is especially the case in catastrophic claims handling for workers’ comp’s most serious injuries. These claims can ruin lives and incur many millions of dollars in costs. Everything done to manage a claim becomes that much more critical when a severe injury is involved.

 

In addition to getting the right treatment to the injured worker as soon as possible and demonstrating care and concern for the employee as well as his family, it is also vital to investigate these claims as thoroughly and as quickly as possible. In addition to the best practices for claims handling, there are additional strategies that can ensure the best outcomes for employees, employers, and payers.

 

This article is Part #2 in Catastrophic Claims Handling Strategies, view Part #1 here.

 

 

Preserve the Scene

 

The cost and nature of catastrophic injuries is such you need to determine exactly what happened to cause the accident.

 

  • Was it a safety issue?
  • Did a machine malfunction?
  • Was it a guarding issue?
  • Was it a lack of adequate training?
  • Was it due to a vendor’s error?

 

The answer can make a significant difference in how the claim is handled – not from the injured worker’s standpoint but the claim itself. For example, if it is determined that a piece of equipment malfunctioned, the employer may seek money through subrogation. A training problem may signal the need for better and more frequent training. It may even turn out that the injury was not work-related. Such a determination can only be made by a careful, thorough review of the site and speaking with other workers.

 

While not a crime scene, all evidence surrounding the accident site should be kept intact to further aid in the investigation. That means not washing down the area – even if it is a gruesome scene. Any equipment that may have been involved should be roped off and made inaccessible to other employees. The employer should be instructed to keep all workers away from the area until it has been properly assessed by the claims adjusters and any other professionals who may be called in.

 

 

Team Members

 

Investigating a claim does not require the claims adjuster to be an expert on everything. But she must know where to get any information needed. A subrogation expert may be needed, for example, if it appears financial liability may be shifted to a vendor or equipment manufacturer.

Additional experts likely needed to fully vet the claim include:

 

  1. Nurse case manager. This is typically the very first person the claims adjuster should contact upon receiving word of a severe injury. Some organizations have dedicated catastrophic nurses who specialize in these cases. The nurse can go to the hospital and meet with the various medical personnel to determine the extent of injuries, the prognosis and the care available at that particular facility.
  2. Medical advisor. In addition to the NCM, a physician should be tapped to provide additional expert medical advice. If the worker has severe burns, the medical advisor may suggest transporting him to a burn center for more appropriate treatment, or a top-level trauma center rather than a community hospital. The physician should also obtain emergency room medical records on the injured worker.
  3. Safety experts. Members of the safety department should be called in to help understand exactly what happened, why and how. These professionals can help decide what is needed to prevent another similar injury.
  4. Home health expert. Once the worker is well enough to return home, decisions must be made about the viability of the home environment, whether modifications will be needed and if a care provider may be needed. The home health expert can work with the team to assess these needs.

 

 

Paying the Bills

 

Payers may be shocked when the first bills arrive on a catastrophic injury claim. There are typically up to 50 pages of itemized charges. These need to be carefully scrutinized to ensure only proper payments are made.

 

There are companies that specialize in this service. They typically charge a flat fee, then handle all the bills.

 

For companies that undertake the bill review process on their own, the medical provider can help determine if the charges included are accurate. There are a couple of points to consider:

 

  • Were all services included conducted? Because of the extent of items on the bills, you need to make sure you are charged only for those treatments that were done.
  • Were any elective treatments included? Services unrelated to the actual injury should not be included on these bills.

 

 

Conclusion

 

Handling a workers’ compensation claim that involves a catastrophic injury should be done with extreme care. You want to make sure the worker is well taken care of, and that the employer/payer is not paying unnecessary costs. The approach taken can be akin to doing a jigsaw puzzle, where the pieces ultimately fit together to form an accurate picture.

 

 

Michael Stack - AmaxxAuthor 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.

7 Strategies to Jump Start Workers’ Comp Delayed Recovery Claims

Workers’ Comp Delayed Recovery ClaimsA company may have the best injury-management program possible, yet still, have claims that go south for no apparent reason. Sometimes called ‘creeping catastrophic’ these are claims that involve seemingly minor injuries that should heal fairly quickly and have the employee back at work in short order. For no apparent reason, these claims instead turn into long-term recoveries, with multiple treatments, surgeries, medications, along with exorbitant costs.

 

There are various reasons for delayed recovery claims. Typically, there are undetected psychosocial risk factors that come into play and render the injured worker unable to heal and return to function.  Identifying, recognizing and intervening early in these claims is key to getting the worker back in action.

 

 

Delayed Recovery Claim Risk Factors

 

Chronic pain is the usual result of injured workers with psychosocial risk factors. For a variety of reasons, they have inadequate coping skills and develop persistent pain long after the injured tissues have healed.

 

Some of the more common psychosocial risk factors include:

 

  • Catastrophic thinking — a belief that the worst possible outcome is the most likely. The person feels helpless to deal with her pain and exaggerates the threat of pain sensations.
  • Fear avoidance/guarding behavior — the worker is unrealistically fearful of hurting himself more, so avoids almost all activity.
  • History of depression and/or anxiety
  • Perceived injustice — the person feels he has been unfairly harmed and assigns blame; to the employer, coworkers or someone or something else.
  • External locus of control — the worker believes someone other than himself can and must heal him, usually the medical provider. The person assumes no responsibility for his own

 

The worker’s pain persists, despite all medical efforts to heal the injury. These workers often end up having multiple surgeries. The medical provider who does not understand psychosocial factors are at play suggests a variety of treatments to cure the employee’s pain. This further exacerbates the worker’s external locus of control and legitimizes the person’s distress.

 

Workers with delayed recoveries often end up on a variety of medications, typically including long-term opioid therapy. And still, the pain continues and may even worsen.

 

Early ID/Intervention to Prevent Delayed Recovery

 

These claims often slip through the cracks; meaning the people managing them, as well as the employer and payer,  fail to realize the extraordinary timeline and treatments that have been provided for many months or even years. By then, this ‘minor’ injury has turned into a long-term, expensive claim.

 

Flagging these claims as early as possible is essential to prevent them from rapidly deteriorating. There are a multitude of ways to identify these claims early in the process.

 

At least one company uses a pain screening questionnaire that has been shown to identify at-risk injured workers as soon as two weeks after an injury. Several insurers and pharmacy benefit management companies have developed programs to key in on at-risk claims fairly soon after an injury. A program that alerts stakeholders to potential problems with a claim is far superior to waiting until someone notices long after the claim has consumed a plethora of treatments and dollars.

 

Once a high-risk claim has been detected, those involved should intervene using a team approach. Ignoring it is not the way to go. The claim can be kept on track, but only if receives prompt and focused attention.

 

When psychosocial factors are involved, an approach other than biomedical must be undertaken. A biopsychosocial approach looks at the whole person, beyond just the injury itself.

 

 

Functional Restoration

 

An integrated system that involves several different disciplines involved has been shown to work well in delayed recovery claims. That may include, for example, physical therapy, occupational therapy, case management, psychology, the treating physician, and the injured worker and his family.

 

The team works in conjunction with one another and communicates among themselves and with the injured worker. Along with the person’s physical ailment, his psychosocial factors must also be addressed.

 

Among the interventions that are successful in treating injured workers with psychosocial factors are:

 

  1. Pain education. Recent research has shown that pain, specifically chronic pain, causes structural and functional changes in the central nervous system. Rather than a sensation, chronic pain is a result of the person’s biology, psychological makeup, belief system about pain, and interactions with the environment.
  2. Cognitive behavioral therapy. This is short term, typically involving a few weeks of sessions. It is goal oriented. Unlike long-term traditional psychotherapy, CBT teaches the injured worker different techniques to change his thinking and behavior, which ultimately teaches him how to cope with his pain.
  3. Mindfulness training. Mindfulness meditation teaches the person to bring his attention to experiences in the present, rather than ruminating about his pain and injury.
  4. This technique helps the worker gain more awareness of his physiological functions so he can ultimately control them. Instruments that provide information on the activity of certain bodily systems are used. People using biofeedback have been able to control their brainwaves, muscle tone, heart rate and pain perception.
  5. Exercise/activity. Movement is one of the most effective treatments to help patients with chronic pain.
  6. This can help the worker change his perceptions, thoughts and behaviors in guided practice.
  7. Relapse prevention training. Strategies such as coping skills, the individuation of triggers for relapse, and self-monitoring techniques can help the injured worker stay grounded and avoid the negative thinking and behaviors that contribute to his chronic pain.

 

 

Conclusion

 

Workers’ comp delayed recovery claims represent approximately 10 percent of claims, but consume 80 percent of medical and indemnity costs. Too often they go unnoticed until they become nearly out of control. By understanding how to identify or recognize them early and intervening with proven techniques, the worker can recover and regain function.

 

 

 

Michael Stack - AmaxxAuthor 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.

Workers’ Comp Retraining: How to Review A Proposed Plan

Workers’ Comp RetrainingWorkers’ comp retraining claims made by injured workers can be expensive and time-consuming.  When addressing retraining claims, it is important to members of the claim management team to evaluate the situation and make a reasoned response.  This not only saves money in the long run, but promotes program efficiency.

 

 

What is Workers’ Comp Retraining?

 

Workers’ comp retraining is a vocational rehabilitation benefit available to an injured worker.  In order to qualify, the employee usually is required to demonstrate they are not able to return to their pre-injury position and require additional education or instruction to achieve a wage comparable to their status prior to the injury.  Permanent restrictions and attaining maximum medical improvement/need for future medical treatment are also important factors.

 

The benefits to an employee (and underlying cost to a workers’ compensation program) involve the following:

 

  • Payment for education or retraining to gain additional transferable skills. This is not limited to tuition at a school.  It can also include the payment for books, materials, and other fees associated with a program; and

 

  • Wage loss benefits during the retraining period. The rationale for paying an employee additional wage loss benefits beyond what is otherwise required while they go to school is to allow them to focus on their education and not worry about other matters of concern.

 

 

Properly Evaluating a Workers’ Comp Retraining Plan

 

A workers’ comp retraining plan will outline the coursework the employee will undertake, along with the skills they will gain upon completion.  It will take into consideration the types of positions available to the employee following completion of a program and likely wages.  This is an expensive proposition and should not be taken lightly.

 

Factors to consider vary in each jurisdiction.  Some common themes to review when evaluating a retraining plan should include:

 

  • The reasonableness of a plan compared to the employee’s ability to return to work with an employer through job placement services: Before retraining is considered, an injured worker should conduct some semblance of a job search.  While this does not need to be exhaustive, an evaluation should be made as to whether the employee has sought work within their restrictions.  This job search should also include a variety of different positions, and not necessarily within the area the employee was performing at the time of the work injury;

 

  • The likelihood the employee will succeed in the formal course of study as part of the retraining plan: The cost of any retraining plan, even if it involves a two-year course of study is expensive.  Part of the review should examine whether the employee can complete the desired course.  A careful evaluation of any proposed program should include the employee’s prior education, how they performed in the classroom and if an absence from a formal learning environment will result in failure.  It may be necessary for someone with a minimal educational history to take remedial courses;

 

  • The likelihood as to whether the retraining program will result in reasonably attainable employment: This review should include a labor market survey of positions the employee will enter once they complete their retraining plan.  Questions should be asked as to what jobs are open in the employee’s labor market and whether they will be around once the coursework is completed.  While there are many unknowns given an ever-changing economy, this is an important factor to consider; and

 

  • The likelihood as to whether the retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the work injury/disability: It is important to determine what wages an employee will realistically receive following completion of a course.  Areas to examine include job placement services of the educational institution the employee will attend and how they are viewed in the marketplace.  It is also important to determine whether the employee will be eligible for only entry-level positions, and how quickly they may advance.

 

 

Conclusions

 

Vocational retraining is an expensive benefit available to injured workers.  Given the dynamics and exposures, it is important for proactive members of the claim management team to pay close attention to when someone is making a claim.  This review includes various factors regarding their efforts to find work before making a claim, their chances of success and the end result.  Failure to take these steps can result in unnecessary steps to any workers’ compensation program.

 

 

 

Michael Stack - AmaxxAuthor 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.

7 Ways to Avoid Mega Workers’ Comp Claims

7 Ways to Avoid Mega Workers’ Comp Claims“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:

 

  1. Are not allowed to use electronic devices, either handheld or hands-free.
  2. May not answer calls. Incoming calls must be directed to voicemail.
  3. Are prohibited from reading or responding to text messages and emails.
  4. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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 - AmaxxAuthor 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.

5 Questions to Investigate the Mechanism of Injury

Investigate Mechanism of InjuryMembers 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.

 

 

 

Michael Stack - AmaxxAuthor 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.

3 Common Defenses Against Illegitimate Workers’ Comp Claims

3 Common Defenses Against Illegitimate Workers’ Comp ClaimsMembers 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.

 

 

 

Michael Stack - AmaxxAuthor 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.

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