1 Defending Against Claims and Minimizing Employer Risks - - PDF document

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Holly Alderman Mark C. Peterson SHRM Idaho Employment Law Conference September 30, 2016

Worker’s Compensation – What Employers Should Know…

A view from your claims examiner and attorney

• n defending claims and minimizing exposure

www.moffatt.com

HOLLY ALDERMAN

Holly Alderman is the Claims Assistant Manager in the Meridian, Idaho, office of Sedgwick Claims Management Services, Inc. Holly has also worked in the capacity of a ClaimsTeam Lead and Claims

• Examiner. Holly has successfully completed the Sedgwick LEAD
• Program. She has Independent Adjuster Licenses for Idaho andUtah.

Her career in claims started at Sedgwick in 1995. Prior to returning to Sedgwick in 2007, she worked as an Occupational Rehabilitation Coordinator at St. Luke’s-Idaho Elks Rehabilitation Services for six

• years. There she had fiscal, administrative, and operational

responsibility of coordinating occupational rehabilitation services, which included a multi-disciplinary chronic pain program, work hardening program, functional capacity assessments, outpatient

• ccupational rehabilitation services, and ergonomics.

MARK C. PETERSON

Mark Peterson defends numerous employers and sureties at all stages of workers’ compensation matters, including at hearings and mediations before the Idaho Industrial Commission and in appellatematters before the Supreme Court of

• Idaho. Mr. Peterson’s workers’ compensation experience spans from small

companies to some of the largest employers and insurance companies in the

• world. Hisexperience also includes representing employers and sureties in

compliance matters before the Idaho Industrial Commission.

• Mr. Peterson represents multiple medical providersin various transactional and

litigated matters. His health law practice includes the representation of hospitals in medical indigency, collections, medical liens, federal regulatory compliance, involuntary mental health commitments, claims against estates, and judicial confirmation of contractual relationshipswith governmental entities. His health law experience also includes representing hospitalsin licensing issues and successfully preventing the improper disclosure of mental health records by the IdahoState Department of Health &Welfare.

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Defending Against Claims and Minimizing Employer Risks

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• Proper claims management and defense of a

worker's compensation claim requires a team approach between the employer, claims examiner and, potentially, defense counsel. The employer plays a critical role in assisting the claim examiner's ability to adjust a claim and defense counsel's efforts to defend a litigated claim.

Team Approach

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• Direct Impact
• Indirect Impact

What's at Stake?

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• Direct Impact: Minimizing claims exposure impacts

what is referred to as the employer's experience

• modifier. The experience modifier is the annual

adjustment to an employer's workers’ compensation premium based upon prior loss

• experience. A rating bureau sets premiums based

upon the employer's historic loss experience over a three-year period.

What’s at Stake?

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• Indirect Impact: The proper handling of workers’

compensation claims can impact the employer in many indirect ways, such as disruption in work force, retraining costs, and employee morale.

What’s at Stake?

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• Reporting
• Investigation
• Medical Care
• Claim Determination

Processing a New Claim

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Processing a New Claim: Reporting

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Report Only

• No medical

treatment sought and no absence from work due to injury New Claim with Treatment

• Medical treatment

and/or one day + absence from work

• It is critical that an employer promptly report claims

to the assigned claims examiner so claims can be properly investigated and handling of the claim will not be delayed.

• Failure to promptly report injuries could prejudice

potential defenses to a claim and subject the employer and surety to further liability for improper delay of supplying benefits.

Processing a New Claim: Reporting

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• The employer plays a vital role in working with the

claims examiner to conduct a proper investigation

• f a worker’s compensation claim. An employer

generally has insight into the employee’s history and circumstances surrounding an injury that may not be available to the claims examiner.

Handling a New Claim: Investigation

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• First Report of Injury
• Written Associate Statement

– These should be in writing to prevent disputes surrounding representations by employee.

• Employer Incident Reports
• Witness Statements

– The employer should get written witness statements from fellow employees who have information surrounding the accident, relevant representations made by employee, and preexisting status of employee. – Statements by employees who are not willing to go “on the record” cannot generally be relied upon.

Investigation: Steps Taken by Employer

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• Video and photos, both of accident and employee on

the job in some cases.

• If available, review and preserve onsite surveillance.

Preserve surveillance covering a wide range of time prior to and after the alleged incident.

• Physical evidence and vendor information (retain

evidence if there is a third party involved).

• Medical Reporting, work status form.

Investigation: Steps Taken by Employer (cont’d)

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• What Examiner Needs to Know From Employer:

– Confirm information provided on First Report of Injury (position, pay rate, hours worked, etc.). – Facts of accident: when, where, what happened, who/what was involved, body part(s) injured, witnesses, video, when was accident reported and to whom? – Is the claim questioned and, if so, why? – Any personnel or performance issues? – Any known co-morbidities, pre-existing conditions?

Investigation: Steps taken by Claims Examiner

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– If conducted, drug test results. – Where employee went for treatment, who directed them. – Date of return to work and if they are performing regular job, wage, hours, or not. – Concurrent job? Full-time student? – Any outside activities/hobbies?

Investigation: Steps taken by Claims Examiner (cont‘d)

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Employee Wages

• The claims examiner is required to set the average weekly wage for

purposes of time loss payments. In order for the claims examiner to set the appropriate wage, the employer needs to provide a documented history of wages.

• 52-week wage history prior to date of injury

– If employed > 30 days with employer but < 52 weeks: provide all wage history. – If employed < 30 days with employer: provide all wage history and also provide wages of a similar, like employee.

Investigation: Steps taken by Claims Examiner (cont‘d)

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Employee Wages

• Delaying a timely payment to an employee could

subject the employer/surety to sanctions or attorney fees.

• If overpayment made by claims examiner due to

incorrect wage information, there may be impediments to recouping overpayment.

Investigation: Steps taken by Claims Examiner (cont‘d)

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• Designated medical provider

– The employer has a right to designate a medical provider

• Sign or Notice of predesignated provider at place of

employment, visible to all employees

Handling a New Claim: Medical Care

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• Why a Designated Medical provider?

– Confidence – Contractual relationships with provider

Handling a New Claim: Medical Care

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• Limitations to designated provider

– Emergent medical care does not have to be with the designated provider – Providers within the chain of referral – Change of physician

Handling a New Claim: Medical Care (cont’d)

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• Idaho law requires that the licensed claims

examiner make the determinationto approve or deny a worker’s compensation claim

Handling a New Claim: Claim Determination

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• The Industrial Commission has taken the position

that a claim determinationmust be made within 28 days

– The timeline for claims determinations illustrates the necessity for promptly reporting claims and beginning the investigation

Claim Determination

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• Any delay or denial of worker’s compensation

benefits must have a reasonable basis

– A delay or denial of worker’s compensation benefits without a reasonable basis subjects the employer/surety to an attorney fee award

Claim Determination

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Reasonable Bases for Denial

• Employee Notice – an employee has 60 days from the

date of the accident or manifestation of occupational disease to provide notice to employer

– Not a complete bar if employee can demonstrate lack of prejudice to employer

Claim Determination

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Reasonable Bases for Denial

• No industrial accident

– The term accident has been interpreted broadly to include something as simple as getting up out of a chair – An accident has been found without any pinpointed incident where a claimant cites the activity that brought

• n the pain

Claim Determination

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Reasonable Bases for Denial

• No occupational disease

– The term occupational disease has been interpreted broadly to include any medical condition that was predominately caused by the nature of someone’s work – Determinations based upon medical opinion

Claim Determination

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Reasonable Bases for Denial

• Denial of medical care

– Must have medical opinion that care is not industrially related – Must have medical opinion that recommended care is not “medically reasonable” – Conflicting medical opinions subject to Commission determination

Claim Determination

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Reasonable Bases for Denial

• Intoxication

– Only basis to deny payment of indemnity benefits – Must demonstrate intoxication was a reasonable and substantial cause of injury – Substance cannot be furnished or use permitted by employer

Claim Determination

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• A growing trend used by employers and their claims

representatives is a claims advocacy model based upon assisting and empowering employees.

• Properly utilizing a claims advocacy model can help

speed up return to work, improve medical

• utcomes, and reduce the litigation of claims and

associated costs.

Claim Advocacy Model

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• Who?
• When?
• What?
• Why?
• How ?

Claim Advocacy

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• All injured employees

Who Needs An Advocate?

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• Early on
• At all stages of the worker’s compensationclaim
• Circumstances exist where you will have to move on

When to Use It

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• Engage the employee – caring counts
• Explain the claims process
• Help them through the process
• Calm their fears
• Answer their questions

What We Can Do

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• It makes the process more transparent
• Lessens employee’s anxiety
• Answers the employee’s questions
• Employees are happier
• Faster return to work
• Less litigation
• Better outcomes
• Empowers employees

Why We Do It

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• Ask the associate, “How are you doing?”

– Be empathetic

• Stay in regular contact with the associate during

the life of the claim

• Offer EAP

How We Do It

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• Predesignate a preferred provider. This allows for better

continuity of care and opportunity to establish a good working relationship with the provider and their staff.

• Offer light-duty work to employee when work restrictions exist.
• If the employee is recovering faster than expected, encourage

them to return to doctor sooner than next appointment.

• Baby Boomers, Gen-X’ers, and Millennials prefer different

communication styles.

How We Do It (cont’d)

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• Explain/offer other benefits that may be available

to employee

• Advise what happens next

What If Claim Is Denied?

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• Positive claims experience for all
• Reduce litigation
• Reduce cost
• Claim closure

Goals of Claims Advocacy

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Questions?

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Holly Alderman

SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

3715 E. Overland Road, Suite 230 Meridian, Idaho 83642 Holly.Alderman@Sedgwick.com 208-388-3200

www.sedgwick.com

For more information or questions, please contact:

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Mark C. Peterson MOFFATT THOMAS 101 S. Capitol Blvd., 10th Floor Boise, ID 83702 mcp@moffatt.com 208-345-2000 1-800-422-2889

www.moffatt.com

For more information or questions, please contact:

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