3 Criteria Determine If A Workers Comp Claim is Covered

Most workers’ compensation claims are clear cut, and there is no question by the employer that the claim is ‘covered’ for workers’ compensation.  However, when an unusual situation occurs, the employer may not know if the work comp claim is ‘covered.’  By ‘covered’ the employer is actually asking “is the claim a compensable workers’ compensation claim?”

 

The compensability of workers’ compensation claims is determined by three criteria.  The criteria that must be met for a claim to be ‘covered’ are:

 

  • There must be an injury or an illness
  • The injury or illness must arise in the course of employment
  • The injury or illness must be caused by the employment

 

 

There must be an injury or an illness:

 

This is the most basic requirement for a workers’ compensation claim.  Most employees understand that an accident that they are involved in which damages the employer’s property but does not cause them any bodily harm, is not a workers’ compensation claim.  “Near misses” where the employee almost got injured by a falling object, failed machinery or other sudden events do not create a workers’ compensation claim, regardless of how scared the employee may have been. (However, many states allow the employee to bring a stress claim if there is also a physical injury to the employee).

 

 

The injury or illness must arise in the course of employment:

 

An injury to the employee or an illness of the employee must occur during the employment.  If an employee injures his back while at home (or anywhere other than the employer’s worksite for that matter), it is not a workers’ compensation claim.  [The most frequent fraudulent claim is the injury that occurred while the employee was not working for the employer].  To determine if the injury is compensable, the employer should verify, preferably through independent witnesses, that the injury occurred while the employee was at work.

 

 

The injury or illness must be caused by the employment

 

‘Caused by the employment’ is often the most difficult aspect for both employees and employers to understand about workers’ compensation.  Just because an injury or illness occurs on the worksite does not by itself create a workers’ compensation claim.  The injury or illness must be caused by the employment.  For example, the employee who is on her lunch break and burns her lips, tongue and mouth with coffee that was too hot, does not have a workers’ compensation claim as the cause of her injury is drinking a very hot beverage.  The employment did not cause the injury.  Another type of occurrence that often becomes contentious is the heart attack that occurs while the employee is working.  If there are no work-related factors that caused the heart attack, the occurrence in the work place does not make it a compensable claim.

 

 

If the employer is unsure if the alleged claim is ‘covered’ by workers’ compensation, the employer should contact the adjuster and be prepared to discuss all the details surrounding the event that is being claimed as a work comp claim.  The adjuster will be able to assist the employer in determining whether or not they have a compensable workers’ compensation claim.

 

 

 

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/

 

©2019 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.

 

Tips for Effective Use of an Interpreter in Workers’ Comp

interpreter in workers' compThe need to use an interpreter in workers’ comp has increased with the changing dynamics of the American workforce including those individuals who do not fluently speak English – whether it be as a primary language, limited use or no working knowledge at all.  The use of an effective translator to assist when communicating with non-English speaking people during the claims investigation process is beneficial for improved claim outcomes.

 

 

English as a Primary Language – A Changing Dynamic

 

There is no “official language” in the United States.  Although roughly 30 states have enacted laws making English (American English) the official language for business purposes, our country remains a melting pot filled with numerous languages and dialectics.  Recent estimates indicate about 350 languages are spoken in the US.  This creates many challenges when a work injury occurs. Members of the claims management team and other interested stakeholders need to be aware of these issues and use interpreters to make sure their claims are properly investigated, and the information is received accurately.

 

 

Goals of Using an Effective Interpreter in Workers’ Comp

 

Using an interpreter is a relationship where all parties need to be on equal footing and involvement.  It is important to set the right tone at the beginning of the process.

 

  • Get to know the interpreter. Understand how they interpret – simultaneous or consecutive.  When using consecutive translation, get a good idea of the length of sentences or phrases one should use.  Patience is key.

 

  • Set expectations for best practices. Understand a good interpreter in workers’ comp is not an advocate for either party.  They should never be used to add persuasion or in a coercive manner.

 

  • Set timelines for translation. Translation services are taxing physically and mentally.  A good interpreter will need frequent breaks.  Understand these limitations and respect them.

 

 

Signs of a Good Interpreter

 

Finding a good interpreter in workers’ comp can be a challenge even if it is a language that is common.  Because work comp claims involve legal matters, it is important to use a court certified interpreter in all instances.  This includes translations taking place during recorded statements, witness interviews, depositions, independent medical examinations/independent vocational evaluations and hearings.  Characteristics of a good interpreter will include the following:

 

  • Interpretation of every word: Accuracy is key. When an interpretation is “word for word,” it ensures the information is being relayed completely and avoids issues for appeal.

 

  • Not providing one-word answers when there was clearly a longer answer: When this takes place, it is noteworthy that accuracy is not valued.  It may be time to stop what is taking place and locate a new interpreter.  This might mean stopping a deposition and re-setting the proceeding.  Although there are additional expenses, it will avoid problems down the road.

 

  • No side conversations: It is important that all parties are involved in a conversation and what is being shared by the non-English speaking person is provided to all.  In some instances, an interpreter may need to ask a question to clarify a term being used. If this is the case, it is important for the interpreter to note this and translate the “side conversation” completely.

 

  • Be aware of regional dialectics: This is something that should be discussed well in advance of using an interpreter.  As is the case in English, words in other languages have different meanings to people in different regions.

 

 

Other Barriers and Challenges

 

It is also important to understand people from other cultures may have misconceptions on the American legal system.  Examples of this may come from people who immigrated from oppressive regimes and governments.  They may have a distrust of the legal system in the United States based on prior experiences.  Other cultures may also view someone with a personal injury differently.  Best practices in claims management must include cultural competence.  Remember to treat all people with respect and dignity.

 

 

Conclusions

 

While there is an added cost, members of the claims management team cannot avoid the demand to use an interpreter in workers’ comp for an injured worker with limited use of the English language – or none at all.  These costs can translate into savings when done correctly.  This includes using a qualified court-certified interpreter, getting to know the person and using one in the right (and necessary) circumstances.

 

 

 

 

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 1: Demonstrate Care and Investigate

catastrophic claims handlingHandling 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.

 

Demonstrate Care & Establish Trust

 

Any injury that occurs in the life of an employee is disruptive, and even minor injuries can seem like major events.  A serious catastrophic injury, by comparison, causes high stress, fear, and anxiety. Questions such as “will I ever work again,” “how will I support my family,” or “will I be able to walk my daughter down the aisle” are prevalent in the employee’s mind.

 

Demonstrating care and establish trust with the injured worker and their family is the highest priority item in your catastrophic claims handling plan. You need to establish that you are working together on the same team toward a common goal.

 

  1. Visit the Hospital. Visiting the hospital is a non-negotiable requirement in a catastrophic claims handling plan. It serves as an opportunity to both give and receive information with the injured employee. You will express care and concern for the employee and ensure they understand and are comfortable with the process; as well as get a feel for the employee’s attitude, the kind of care received from the medical provider, and the prognosis.

 

  1. Work with the Family. The injured worker’s family are typically the first people the adjuster or employer representative will see. They are likely scared for the injured worker and concerned about what is coming, how they will pay for medical care and other expenses, and how they will be able to juggle being with him and handling their daily routines. Leverage empathy and active listening to understand and meet the needs of the family.

 

It is critical to put yourself in the shoes of the injured worker and his family, to understand what they are going through and consider how you would want to be treated if it was your spouse or best friend. This leads to positive outcomes and prevents litigation.

 

 

The Investigation Elements

 

Investigating a workplace injury is, or should be routine for organizations. You want to find out what happened, how, when, where and why. Typically that involves things such as:

 

  • Talking with the injured worker
  • Identifying and taking statements from witnesses
  • Reviewing any available video – from the scene and surrounding areas
  • Assessing the accident scene

 

These actions may be a bit more complicated when a catastrophic injury is involved. Mistakes in the process can lead to unnecessary expenses and/or improper medical care. Properly investigating a catastrophic injury claim must be undertaken with the utmost care.

 

Carriers or third-party administrators often have specialized teams of experts available to conduct these and provide information to the claims adjuster.  Each member of the team understands his responsibilities in collecting and saving information. In addition to the basic information needed, these professionals will get additional details, such as

 

  • When the employee arrived at work
  • When/where he was working when the injury occurred
  • Who was in the area at the time of the injury
  • Who, if anyone else was involved in the accident
  • What equipment was in the vicinity of the accident
  • Whether any machines malfunctioned
  • What actions were taken immediately following the accident/injury
  • How quickly the worker received medical care
  • When and where the worker was ultimately taken

 

The claims adjuster needs this information as quickly as possible before she questions the employer or the injured worker. The adjuster may either go to the hospital to meet with the worker and/or his family, or send a nurse case manager to the facility and go herself to the worksite first.

 

Those who have been conducting the initial investigation can meet with the claims adjuster once she arrives at the employer’s offices to discuss their findings. The adjuster can then take pictures and do a more thorough investigation before getting a statement from the injured worker.

 

 

 

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.

6 Effective Claim Handling Tips For Undocumented Employees

6 Effective Claim Handling Tips For Undocumented EmployeesInterested stakeholders in workers’ compensation need to pay attention to the changing workforce as immigration continues to change the composition of the American workforce.  This includes being mindful of immigration laws and making good faith efforts to comply with the Immigration Reform and Control Act and the employment of individuals authorized to work within the United States.  Notwithstanding these efforts, people without such proper documentation enter the workforce and become injured.  This creates problems for employers and insurers that can add costs to a claim.

 

 

Understanding the Basics

 

The Immigration Reform and Control Act controls employment practices in the United States.  Under this law, only American citizens or non-citizens with the proper work permits are allowed to perform work legally.  However, employers continue to employ people without proper authorization – in some instances knowingly engaging in this type of employment practice.

 

A state’s workers’ compensation law defines eligibility for benefits.  In many instances, one’s legal employment status does not serve as a bar to benefits after following a work injury.[1]  The issue of hiring someone not legally allowed to work in the United States is not going away.  The only true way to deal with such issues is to make good faith efforts when verifying someone’s work status.  The reality is even if an employer undertakes these efforts, people not legally allowed to work will continue to seek employment.

 

 

Effective Claim Handling with Undocumented Employees

 

Many employees working inside the United States without proper documentation are hardworking and performing “high risk” jobs.  Handling a claim with someone who is undocumented does not give stakeholders in the workers’ compensation process license to discriminate.  The bottom line is all injured employees should be treated with respect and dignity.

 

Employers need to take the lead on this issue during the pre-employment screening phase and following a work injury.  Interested stakeholders within these organizations should take note of the following principles:

 

  • Understand the requirements of the Immigration Reform and Control Act in employment practices;

 

  • Apply consistent standards to acceptable documents for verifying an applicant’s immigration status. Special document requests cannot be made unless prescribed by applicable law; and

 

  • Complete and maintain the proper paperwork for all employees. This includes the federal I-9 form.

 

The workers’ compensation insurer must provide all benefits an injured worker is entitled to under the jurisdiction’s law following a work injury.

 

 

Other Tips to Avoid Traps

 

Members of the workers’ compensation claims management team need to be proactive when it comes to handling claims involving employee’s who are undocumented.

 

  • Effective Discovery: It is important to understand the facts of the case in order to develop a complete analysis.  Digging too deep into an employee’s immigration status following an injury during the investigation and discovery phase may not be helpful in the end.  If the employer legitimately believes an injured worker is legally able to work inside the United States, but later has knowledge of their true status, they may be precluded from making a valid written job offer.

 

  • Encourage RTW Efforts for All Employees: Returning all employees to work following an injury reduces the medical and indemnity benefits paid on a claim.  If an employer believes an employee is legally permitted to work inside the United States and does not have knowledge otherwise, it is permissible to make a job offer conditioned on the presentation of valid work documentation.  Consultation with an attorney before choosing this option is prudent.

 

  • Cooperate and Make Timely Wage Loss Benefits: Unless specifically excluded by statute or case law, all employees regardless of immigration status are entitled to wage loss benefits.  Failing to cooperate or make timely payment of benefits can lead to litigation, sanctions/penalties and create ill will.

 

 

Conclusions

 

All employees need to be treated ethically.  This includes common courtesy and respect regardless of one’s immigration status.  After making sure these prerequisites take place, interested stakeholders need to be proactive and coordinate efforts when dealing with someone who is not legally allowed to work inside the United States following a work injury.  This includes understanding the law and working with an attorney to avoid excessive workers’ compensation program costs.

 

 

[1] In Correa v. Waymouth Farms, Inc., 664 NW 2d 324 (Minn. 2003), the Minnesota Supreme Court upheld the award of TTD benefits to an undocumented worker based on basic tenants of statutory construction.  The Court did not discuss the undocumented employee’s edibility to vocational rehabilitation benefits.  Courts in other jurisdictions have reach a similar conclusion in all but a few instances.

 

 

 

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.

Aggressive Defense of Workers’ Comp Mental Injury Claims

Aggressive Defense of Workers’ Comp Mental Injury ClaimsThe expansion of workers’ compensation laws to include mental injuries has added to the many challenges members of the claims management team face on a daily basis.  Among these include the investigation of mental injury claims, the review of medical records and use of independent medical experts to properly position and defend these claims.  While these challenges are numerous, failure to adopt effective claim management techniques can add to the cost of claims and decrease the efficiency of a workers’ compensation program.

 

 

What are Mental Injuries in Work Comp?

 

There are two main types of mental injuries in workers’ compensation claims.  It is important for interested stakeholders to understand the variety of challenges one can face and effectively handle them:

 

  • Physical/Mental Injuries: This type of claim typically results because of a physical injury.  For example, the employee suffers a low back injury.  Following the injury, the employee develops depression or other psychological and/or psychiatric sequela.  The challenge in handling this type of claim is the employee is suffering from conditions that require more than one medical expert – one handling the physical component and the other including metal issues.

 

  • Mental/Mental Injuries: This is an injury that results from work-related mental stress or stimulus that produces in many cases symptomology or ailments deemed to be compensable.  The legal standard for this type of injuries varies in each jurisdiction.  Claims for mental injuries usually require the diagnosis be made by a mental health professional and can be limited to certain conditions such as Post-Traumatic Stress Disorder (PTSD).    In some instances, “mental/mental” injuries are not compensable – and can only result in liability if there is a physical injury.

 

 

Claims Investigation In Mental Injuries

 

Whenever an employee makes a claim (or can make a claim for mental injuries), it is important for the members of the claims management team to take note and use extra caution.  These types of claims carry significant medical and indemnity exposures.  They can also be costly to defend.  Areas of investigation for mental injuries should include the following:

 

  • Complete medical background, including medical care and treatment with psychological and/or psychiatric professionals;

 

  • Information concerning the employee’s history of substance use and/or abuse. This should also include the use of alcohol, prescription medications, and street drugs.  Employees are often hesitant to answer questions about these matters and can become a point of contention during recorded statements and depositions;

 

  • Family history and interpersonal relationship information. This can include adoption, gender identity dysphoria or divorce;

 

  • Criminal background check and arrest records; and

 

  • Information concerning the employee’s credit history and insurance claims.

 

 

Aggressive Defense of Mental Injury Claims

 

Members of the claims management team must treat all employees with the respect and dignity they deserve.  It is important to confront cases involving psychological and/or psychiatric claims with an added level of care given the sensitive nature of these issues.

 

  • Investigation: Never leave a stone unturned when handling these cases.  It is important to obtain complete information about the employee and the events surrounding the injury.  Important factors include whether the employee directly witnesses the incident leading to the claimed mental injury, the magnetite of the mental stress suffered because of the incident, the nature, and quality of fear and anxiety connected with the event in question and whether the stressor is something beyond what one would ordinarily experience.

 

  • Experts: In many mental/mental workers’ compensation claims, an effective defense will require the medical opinions of multiple medical experts.  This will often include psychologists, psychiatrists, neuropsychiatrists, therapists/counselors and/or social workers.

 

  • Legal: Given the complexity of these type of claims, members of the claims management team often refer these cases for defense.  Before a referral is made, a claims handler may consider setting the claim on for a “roundtable” session or having it reviewed by a peer.  Using an aggressive defense attorney is a solution when all else fails.

 

 

Conclusions

 

Workers’ compensation claims that involve a psychological and/or psychiatric component require members of the claims management team to be fully engaged.  This is due to the fact the exposures can be costly, and bad decisions can negatively impact a program’s bottom line.  Interested stakeholders need to understand the issues involved and defend these matters with care to be successful.

 

 

 

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.

 

 

Reduce Costs via Workers’ Comp Litigation Management

Reduce Costs via Workers' Comp Litigation ManagementEffectively monitoring and handling litigation costs is an important role for each member of the claims management team.  This is because once a matter is placed into litigation, a level of uncertainty arises.  This not only includes unforeseen costs and expenditures but the possibility of an unexpected outcome if the case goes to a hearing.  Failure to perfect analysis of a claim can lead to excessive and added costs to any workers’ compensation program.

 

 

Setting the Stage via Claim Analysis

 

Roughly 98% of all workers’ compensation cases settle without the need to go to a formal hearing.  Of the remaining claims, defense counsel will litigate and hopefully reach a favorable result for the employer and insurer.  While every case sent to counsel for defense is evaluated, it is crucial to ensure the claim receive the proper attention and analysis so excessive costs and be avoided in the long run.

 

Effective claims analysis starts with a diligent investigation that immediately after the work injury.  Members of the claims management team need to take part in this investigation by understanding what questions need to be asked and how to handle the collection of evidence.  It is also essential to train all employer representatives on completing the proper forms and evaluating the Average Weekly Wage of the employee to avoid costly mistakes.

 

 

Providing Proper Direction for the Defense Attorney

 

This step in the process goes beyond selecting the correct defense counsel to refer a claim.  Several steps need to occur beforehand to ensure the claim is given the proper analysis along with the development of the appropriate strategy.  Additional steps need to take place internally to vet cases and make sure claims are sent to defense counsel for handling.

 

Once the case is referred for defense, the individual claim handler should ensure proper procedures are followed.  Items to consider include:

 

  • Drafting a coherent claim referral letter to counsel outlining the known facts of the claim and possible defenses;

 

  • Outline the objectives of the file referral and what the best outcome would be on the matter;

 

  • Ensure the preservation of confidentiality and other potential conflicts of interests in the tripartite relationship with the insured; and

 

  • Reiterate claim handling guidelines, and expectations should the file be selected for audit.

 

 

Developing a Comprehensive Defense Plan

 

The best defense council relationship is one where the attorney acts a fiduciary, meaning your best interests are put first.  A good working relationship will develop with the claims management team and defense counsel to coordinate the defense of a file. This goes beyond making sure that attorney understands the expectations on a file.  Establish the rules of engagement with a new attorney relationship to avoid confusion down the road.

 

  • Status Reports: Establish a reasonable frequency for status reports from defense counsel. Each report should include information on what events took place during the reporting period, how that information impacts their analysis and what to expect.

 

  • Exposure Analysis: Understand the nature and extent of all claim issues.  This allows members of the claims management team to set reserves accurately.  Failure to do so can result in losses to a workers’ compensation program and the inability to settle cases with efficiency.

 

  • File Reviews: Holding consistent file reviews will allow for the claims handler, defense counsel and other interested stakeholders to discuss important cases and plan accordingly.  It can also be used to identify trends and address important developments.

 

 

Conclusions

 

Running an efficient workers’ compensation program requires the engagement of the claims management team, defense counsel and other interested stakeholders to use scarce resources effectively.  This can be accomplished through the development of a litigation plan on each case.  The benefit of implementing such successful programs is settling and cost-effectively winning more cases.

 

 

 

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.

Key Steps to Avoid, Manage, and Win Workers’ Comp Litigation

Key Steps to Avoid and Manage Workers’ Comp Litigation You’re missing a great opportunity if you view your defense attorney as a necessary expense rather than an asset to your workers’ compensation program. Employers who partner with their lawyers throughout the entire claims process can see fewer litigated claims and more wins when they do go to court.

 

While some workers’ compensation payers say defense counsel are not their friends, those who do find they have better outcomes and lower overall program costs. It involves getting the right attorney and treating each other as a fiduciary.

 

 

Attorney’s Role

 

The main function of your attorney is to represent your organization’s interests in legal battles. However, many employers are expanding the role of lawyers; making them part of a team focused first and foremost on reducing your losses. Rather than trying to control costs by keeping attorneys at bay unless and until a suit is filed, they have realized better results by working closely with them throughout the process.

 

The idea is to get the perspectives of several professionals before making decisions, such as whether to accept or deny a claim and how to proceed. The team approach creates a synergy, yielding better outcomes. Your defense attorney should play a prominent role in the group.

 

Ideally, the attorney should be involved from the very beginning — sometimes, even before a claim has been filed. Employers and payers should be able to contact their defense attorneys by phone or email and:

 

  • Ask questions based on the information you have.
  • Get advice on whether to accept or deny the claim.
  • Find out their thoughts on how best to limit exposure.
  • Get recommendations for particular experts, such as independent medical examiners.
  • Hear suggestions for investigative techniques.

 

It’s also incumbent upon payers to provide their attorneys with as much information as possible about the injury and the affected worker. For example, letting the lawyer know about an injured worker’s preexisting condition or the fact that he has been in therapy for three months could change his opinion and advice on how to move forward.

 

 

Getting the Right Attorney

 

If you wouldn’t feel comfortable contacting your attorney early in the claim process, you might want to find another attorney. If the lawyer starts billing you as soon as she picks up your phone call, she is not a ‘team member’ invested in your program.

 

To ensure you have the best attorney, look at his bills. He should not nitpick or overcharge you for simple questions or advice, and should be willing to explain all his charges.

 

Avoiding contact with your attorney at the beginning of a claim as a way to control costs should not be an issue. Your attorney should treat you as a friend and be willing to provide his thoughts without increasing his fee.

 

 

Winning in Court

 

Despite the best efforts of all involved, some claims will be contested. Having your defense attorney involved from the beginning gives you a leg up in court Additionally, you’ll have a competitive advantage if you investigate every case early and thoroughly, and be ready to try every single case.

 

While the employer technically does not have the burden of proof, in reality, that is how they should proceed. Payers should prepare based on the premise that they, not the injured worker, have to prove their case.

 

Among the most effective tools to gather early in the claims process are:

 

  1. Written statements. The injured worker, supervisor, and any witnesses should be questioned and asked to sign statements attesting to their recollection of the incident. These can be a great tool later in court if these same individuals have different memories of the incident.

 

  1. Videos. A recording of the actual event as it happens is ideal, but not always available. However, several types of videos can help with a case:

 

  1. Video of the area. The judge and others will have a clearer understanding of how the incident occurred if they can see the actual conditions.

 

  1. While an actual recording of the incident may not be available, you can try to recreate it. This might show that the incident could not possibly have occurred in the way it was described.

 

  1. Short video of the job. This will help educate the judge, as well as the treating physician, IME, and the attorney. For example, it might show a different version of the worker’s tasks than what he has described, leading a physician to clear him to return to work.

 

  1. Outside angles. Cameras outside the area or the building may provide valuable insight, such as if the injured worker suddenly loses his limp when he steps out of the building.

 

  1. Social media. Payers should peruse a variety of social media sites. Younger workers, especially, are prone to post themselves in many environments and activities, some of which may be in direct contrast to their alleged injuries.

 

An effective defense attorney goes above and beyond the norm. That means presenting the evidence in the most persuasive manner possible.

 

Rather than just going to court with written statements, the attorney should bring people to testify, including the supervisor, the physician — in person or via phone — and witnesses who have signed statements. Live testimony from the injured worker or witnesses who recall the incident differently than they had originally can be asked to read aloud their written statements. The attorney can also ask the supervisor and witnesses to dress the way they were on the day of the incident as it lends more credibility.

 

 

Conclusion

 

Working closely with your defense attorney can help you identify the cases you should accept and those you should fight. Getting the attorney involved early in the process and doing a comprehensive investigation can avoid litigation in many cases, and help you win cases that do go to court.

 

 

 

Michael Stack - AmaxxAuthor 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.

4 Items Claims Handlers Want From Their Defense Attorney

Workers’ compensation defense attorneys may lay awake at night wondering what their claims handler really wants.  Besides getting their files closed in a timely manner, they want to work with defense attorneys committed to a zealous defense of the file in an ethical and cost-effective manner.  Here are some tips that can help defense attorneys sleep better at night knowing they are giving their claims handler what they want.

 

 

Calculate the Average Weekly Wage (AWW)

 

The AWW is the basis for most indemnity benefits in a workers’ compensation claim.  Failing to calculate it correctly can increase the cost and exposure of the claim.  A seasoned defense attorney needs to communicate with the employer and receive additional explanation from the employee on a number of issues.  The list can be endless, but some special considerations include:

 

  • Whether the employee was a full or part-time worker;

 

  • Whether the employee was working any additional jobs outside the employer involved in the claim;

 

  • Investigation into the nature of any fringe benefits the employee was receiving. This includes tips, bonuses, insurance benefits and other forms on potential income; and

 

  • Special circumstances concerning the employee’s employment. This is especially the case when the injured worker in a seasonal employee, construction worker or part of a union collective bargaining agreement.

 

 

Calculate and Evaluate the Indemnity Exposure

 

Once the AWW is correctly calculated, the defense attorney can provide an accurate analysis to the claims management team about wage loss exposure.  This includes information on the following benefits:

 

  • Temporary Total Disability (TTD)—Benefits paid when the employee is temporarily off work due to injury or disability;

 

  • Temporary Partial Disability (TPD)—Benefits paid when the employee returns to work, but at reduced hours or rate of pay;

 

  • Permanent Partial Disability (PPD)—Typically a hybrid benefit based on the AWW and the number of weeks disability assigned by statute or rule to an injury; and

 

  • Permanent Total Disability (PTD)—Benefits paid when the employee is permanently precluded from returning to gainful employment based on their age, training and experience, and the type of work available in the geographical area. Various presumptions may apply concerning an employee’s receipt of Social Security Disability benefits.

 

 

Aggressive Defense Strategy That is Cost-Effective

 

Members of the claims management team also appreciate an aggressive defense strategy that moves a case toward settlement in an efficient and cost-effective manner.  Considerations for such planning include:

 

  • An immediate status report upon receiving the claims file, with periodic reports that are robust and evaluate the strengths and weakness of various defenses, a reasonable strategy and probable outcome;

 

  • Identification of missing information that needs to be discovered in order to provide an accurate analysis and defense. This includes a plan on how to uncover this information and whom might be a witness at hearing; and

 

  • Recommendations on how to move a case toward settlement. This includes information concerning the timing of an independent medical examination or independent vocational evaluation.

 

 

Medicare Secondary Payer Compliance

 

Medicare Secondary Payer compliance is an important part of any workers’ compensation claim analysis.  This includes recommendations on the following topics:

 

  • Whether a service provider should be utilized to prepare a Medicare Set-aside allocation;

 

  • If the Medicare Set-aside should be included for review and approval under the voluntary CMS process; and

 

  • Matters concerning conditional payment identification and repayment.

 

 

Conclusions

 

The wants of a workers’ compensation claims handler are quite simple.  They expect professionalism and responsive defense counsel to assist them on all claims.  While the defense attorney might not have all the answers, they need to assist the claims handler in discovering the information and reporting on it timely.  This also includes a reasonable analysis, while being a zealous advocate.

 

 

 

Michael Stack - AmaxxAuthor Michael Stack, Principal, 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.

8 Categories To Define Winning Workers’ Comp Litigation Strategy

Legal fees in litigated workers compensation claims can quickly become a significant part of the overall claim cost.  Fortunately, there are some very good ways to control legal cost without having a negative impact on the overall claim settlement.  The best time to establish control over legal fees is when the defense attorney is first employed; however, the best time to control the overall strategy of the litigation is before counsel is even hired.

 

Prior to hiring counsel, a fast track defense strategy should be established to ensure that appropriate actions are taken immediately upon notification of a claim. [The individual components of a fast track strategy are beyond the scope of this article.] The establishment of some basic ground rules for the legal fee billing before the attorney goes to work on the workers compensation claim will result in a measure of cost control without sacrificing the best possible settlement of the claim.

 

Litigation cost control is much more than negotiating the hourly rate and whether or not you will be charged for postage.  There are Best Practices for Litigation Management that should be utilized as a major part of your legal cost control.  The Litigation Management Best Practices can be broken down into easy to measure performance goals.  The following questions will assist you in determining if your current litigation program is controlling cost fully.

 

 

Defense Counsel Selection:

  • Is the defense counsel on your company’s list of approved counsel?
  • Is the defense counsel selected a law firm, or a specific attorney (preferably), within the law firm? Many carriers have an “approved list” of attorneys they use; this doesn’t necessarily mean those are the best attorneys or the most knowledgeable for your purposes, so consider their qualifications carefully and if you have another attorney you wish to use, discuss adding him/her to the list of approved counsel.
  • If the defense attorney is new to representing your company, has the attorney been provided the terms and conditions of the assignment?
  • Have they visited your operations, seen your products and know the basic requirements of the jobs within your workplace?
  • Have the reporting requirements been clearly stated?
  • Was a litigation budget request incorporated into, or attached to, the assignment letter?

 

The Answer:

  • Did the workers compensation adjuster refer the matter to defense counsel timely when an answer must be filed?
  • Does the employer provide the complete facts of the injury immediately such as how the injury occurred, photographs of the accident, information about weight of objects lifted, the employee’s application for employment, information about any prior injuries, prior claims, or prior medical absences. Having the employment file is very helpful.
  • Does the defense attorney have everything needed to complete ALL blanks on the First Report of Injury. Does he have the OSHA Report?
  • Does the defense attorney offer arbitration or mediation as an alternative to protracted litigation?

 

Initial Legal File Handling:

  • Are all medical and/or indemnity issues covered by the workers compensation policy?
  • Is the potential exposure on the claim evaluated correctly?
  • Is there an economic justification for a quick disposition of the claim?
  • Are there any statute defenses that need to be addressed?
  • Are there any unique aspects of the claim that could alter the outcome favorably or unfavorably?
  • Are all potential third parties noted?

 

Defense Counsel Acceptance:

  • Does the defense counsel send an acknowledgment of the assignment to both the workers compensation adjuster and to your workers compensation coordinator?
  • Does the defense counsel provide an initial review and evaluation report within the first 30 day?
  • Does the initial review offer alternative courses of action and the probable outcomes?
  • Does the defense counsel provide a detailed budget plan within the first 30 days?

 

Defense Counsel Staffing:

  • With the acceptance of the assignment, did the defense counsel specify who will be working on the claim?  (Unless the claim is extremely complex, the defense attorney, possibly one junior associate and one paralegal are all of the law firm that should be involved.  Multiple associate attorneys and multiple paralegals will add time [cost] learning the claim before being able to proceed with an activity).
  • Is the hourly rate for each of the law firm members clearly stated?
  • Does the attorney do work that should be done by the paralegal?

 

Budget:

  • Is the budget completely itemized?
  • Is research time included only for extraordinary issues?
  • Does the budget include the cost of any experts that will be retained?

 

Claim Handling:

  • Does the defense counsel make recommendations for any additional adjuster work that should be done?  (Defense attorneys are notorious about having the paralegals do the adjuster’s job of obtaining medical records and other documentation).
  • Does the defense attorney have the adjuster hire other vendors (surveillance, nurse case managers, vocational rehabilitation, etc.) or does the defense attorney complete the adjuster’s work?

 

Actions of Defense Counsel:

  • Is defense counsel avoiding the expenses of depositions and other discovery if it is the intent to settle the claim? Often, some discovery prior to settlement can reduce the amount of the ultimate settlement.
  • Is the defense counsel requesting only necessary depositions?
  • Is the defense counsel reporting significant developments timely?
  • Is the defense counsel reporting the progress of the claim at least every 90 days if the case is moving slowly?
  • Do the reports from defense counsel cover all pertinent information without repeating prior reports?
  • Does each report include an action plan to move the claim forward?

 

Hearings / Trials:

  • Is the hearing / trial date reported as soon as it is known?
  • Does the defense attorney provide a pre-hearing / pre-trial report at least 30 days ahead of hearing / trial?
  • Does the defense attorney provide a strategy for the hearing / trial?
  • Does the defense attorney timely request additional settlement authority when needed?
  • Does the defense attorney provide a timely update or report on the hearing / trial?

 

Legal Bills:

  • Is the amount billed for each activity appropriate?
  • Are the bills properly itemized with each activity being billed separately?  (As opposed to block billing where several activities are lumped together and one charge is given for all work done).
  • Do the legal bills follow the defense attorney stated course of action?
  • Are the legal bills in compliance with the litigation budget?

 

If you are uncomfortable trying to control the litigation cost or feel you need an expert to review the litigated workers compensation claims, please contact us for assistance.

 

 

Author Michael Stack, Principal, 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/

Live Stream WC Training: http://workerscompclub.com/livestreamtraining

 

©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.

If It’s a Safety Issue, Can You Learn What Medications Your Employee Is Taking?

execStaffby Robert Dooley

V.P. Administration & General Counsel @ Medcor

 

Medcor operates clinics that have over 300,000 patient visits each year. As you can imagine, Medcor has had to deal with its fair share of tricky compliance issues that can occur in a workplace clinic. The following is one of those issues.

 

Question:

 

I’m Joe’s supervisor. I heard a rumor that Joe, who drives a forklift, is taking anti-seizure medication for a personal health issue. If I ask the Medcor clinic personnel, can they tell me what medications Joe is taking? This is a safety issue and I think I’m entitled to the information.

 

 

Answer:

 

Generally, the answer is, “no,” for jobs not governed by the DOT, FAA, etc. As a HIPAA covered entity, Medcor is responsible for making sure that all Protected Health Information (PHI), including information about medications acquired by Medcor in the course of treating a patient is properly secured and not released to anyone, unless permitted by law. This means that unless the patient has executed a valid authorization, or unless the release of the information about medications is permitted or required by law, Medcor may not be able to tell the supervisor about the medication.

 

Employers must be careful when pursuing this information. Acquiring information about an employee’s prescription medications may implicate the ADA and other laws. Employers should obtain legal advice about how to properly implement comprehensive policies for screening for impaired employees. Employers should consider limiting the application of these policies to safety sensitive positions, and not to all employees. The policy should contain a legally vetted definition of “safety-sensitive position,” such as a position where, “even a momentary lapse of concentration or attention could result in injury to the employee or others, or damage to property or the environment.” The policy should have a list of all safety sensitive positions that meet the requirements of the definition. All safety sensitive positions should have job descriptions that include as an essential safety function, “the ability to work in a constant state of alertness and safe manner,” or equivalent language. Policies should require clearance from the employee’s physician after the physician has reviewed the employee’s job description and the definition of safety sensitive position. The policies should limit disclosure to designated individuals in HR and generally not permit disclosure to supervisors.

 

There are ways prescription information can be obtained by an employer. The best way is for the employee/patient to execute a proper authorization, which would allow the clinic to provide the prescription information to the employer. The authorization must meet all the requirements of HIPAA and any applicable state law. The authorization should be part of any company policy dealing with impaired employees.

 

Armed with proper comprehensive policies and procedures, employers can protect themselves and others from impaired employees.

 

 

Author: Robert E. Dooley joined Medcor in 2005. Bob’s responsibilities include regulatory compliance, contracting, and general administration. He also oversees operations at several on-site clinics. http://medcor.com.

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