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Personal Sensitivity Claims Complicated Workers Compensation Matter

September 6, 2018 By JL Risk Management Consultants

Personal Sensitivity Claims – Frustrating For Employees and Adjusters

A large number of personal sensitivity claims have created a large chasm between workers compensation adjusters and employees who report this type of claim.

picture of personal sensitivity claims rash

Wikimedia Commons License – Skoch3

General sensitivity claims can be defined as where the employee reports a claim that may have been caused by exposures that the general public faces and are not specific to the job.

The maddest employees with the smallest workers comp claims come into play when adjusters assess a claim – usually medical only claims – as not being specific to the risks of the employee’s job.

The best example:

Part of an employee’s job involves washing down a workspace. The cleaner used is nothing more than Dawn soap and warm water.
The employee reports a claim that the Dawn soap irritated their hands and caused a rash on their arms.
The employee seeks medical treatment for the irritation and rash
The medical only adjuster receives the first report of injury.
The medical only or lost time adjuster denies the claim as personal sensitivity
The employee becomes very upset that the claim is not paid under Workers Compensation even though they may have health benefits.
These claims have been litigated in certain states.

Is it a better risk management technique to accept this claim and pay it rather than have a disgruntled claimant on their hands?

Man Hand Writing personal sensitivity claims Risk Management Word

by StockUnlimited

If the company that processes the claim is a Third Party Administrator (TPA), then the employer should have a large say as to whether they claim is paid instead of creating a disgruntled employee situation. Remember, an adjuster that works in a TPA environment is spending the money out of a self insured’s account.

I remember having an agreement with certain self insureds that personal sensitivity claims are to be paid and not denied. Some of those very small claims have turned into much worse claims that could not be denied later in the claim.

This type of claim has been ruled on in many jurisdictions. I cannot make a blanket statement as to which states allow or do not allow the claim.

This situation is one that should be run by the defense attorneys that the adjuster usually works with on their claims. Personal sensitivity claims may seem too insignificant to speak with a defense counsel. It will be well worth your time to know the answer even if you have not handled personal sensitivity claims.

I wanted to bring this issue to the attention of claims departments, safety managers, risk managers, and our other 7,000 weekly newsletter readers.

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Filed Under: Medical Only Claims Tagged With: Claims Adjuster, injured employee

Workers Compensation Medical Treatment Lag Time – WCRI

August 8, 2018 By JL Risk Management Consultants

WCRI – Time From First Injury To Workers Compensation Medical Treatment – Comparison Across 18 States

Most Workers Compensation medical treatment foretells how a claim will progress over its lifetime. One of My Six Keys To Saving on Workers Comp claims involves having a preset medical network in place.

The other likely involved key concerns the timely filing of the medical report.

picture of injured workers compensation medical treatment by Red Cross

Wikimedia License

These two keys can easily escalate a claim to over 800% more than if the first report filing time – called employer reporting lag time– tallies in with a high number along with the medical treatment not being provided to the injured employee ASAP. The 800% figure came from my research into claims on two different public entity sets of files that involved over 10,000 claims.

The study can be purchased here for $5, yes just $5 for a great study.

WCRI (Workers Compensation Research Institute) attempted to answer three different questions. I was hoping the answers to these three questions would agree with my old research. Those three questions were:

How much variation was there across states in the time from injury to first treatment for physical medicine and “specialty” services (such as surgery, major radiology, and pain management injections) across injury types?
Were there consistent patterns in time to first medical treatment; that is, did some states show shorter or longer time to treatment across injuries and services?
How much variation was there across states in the time from injury to first treatment for “entry” services, such as emergency, office visits, and minor radiology?

The study’s data sets were:

The study examines claims with more than seven days of lost time for injuries occurring from October 1, 2014, through September 30, 2015, evaluated as of March 31, 2016. This would, in a way, eliminate medical only claims from the data set.

The 18 states in the study are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.

Two different reporters contacted me on my opinion of the study. One aspect that I had not read yet was that North Carolina was one of the lagging states in providing Workers Compensation medical treatment. (wow!) I decided to read more into the study.

nurse taking workers compensation medical treatment blood pressure

by StockUnlimited

Page 17 of the study (flash report) shows the average of all the states. The table (Table A-2) shows the comparison across all medical treatment types with the 18 studied states.

The states that were the slowest in providing medical treatment were (overall):

Massachusetts
North Carolina
Louisiana
California

I am not sure exactly what to draw from the study and flash report. California with its utilization review process would make the delays almost understandable. I am not so sure about the other three.

Our HQ state – North Carolina – surprised me quite a bit. North Carolina has employer-controlled worker compensation medical treatment. North Carolina did not place last or near the bottom in all of the study’s categories. I will likely need to read the study again to see if any hidden data nuggets exist in the workers compensation medical treatment data.

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Filed Under: authorization, medical, WCRI Tagged With: injured employee, medical network, workers Comp Claims

North Carolina Appeals Court Medication Decision – FDA Shocker(?)

April 24, 2018 By JL Risk Management Consultants

North Carolina Appeals Court Says RX OK Even If Not FDA Approved

A North Carolina Appeals Court rendered a very interesting decision earlier this month that was a shocker.. I am not saying whether or not I agree with the decision. Those kinds of decisions are best left to the courts.

The case was Davis v. Craven County ABC Board, No. COA17-908, 04/17/2018. The complete decision can be found here.

It is a small PDF file. You will need a PDF reader such as Adobe Acrobat.

One of the bedrock decisions in North Carolina (I was the claims adjuster on this one) was Simon v. Triangle Materials. The Simon decision brought “effect a cure and give relief” to light and strengthened the phrase in our HQ state.

Davis’s claim was accepted as compensable. The treating physician prescribed a non-FDA-approved cream for the injured employee to use. The carrier denied the prescription. The North Carolina Industrial Commission approved its use by Davis at both Deputy Commissioner and Full Commission levels.

The insurance carrier once again appealed it now to the NC Court of Appeals. The North Carolina Appeals Court summarized their decision very well in one paragraph:

The Rx North Carolina Appeals Court Icon

commons.wikimedia.org by Nevit Dilmen

As explained below, we reject Defendants’ argument that non-FDA-approved drugs should be categorically excluded from medical compensation under the workers’ compensation system. The text of the Workers’ Compensation Act does not limit drug treatment solely to FDA-approved drugs. Defendants assert a number of persuasive policy arguments concerning the risks of non-FDA-approved drugs, but
this Court has no authority to rewrite the law on policy grounds. That is a task for the legislative branch.

Take notice of that last bolded sentence – very interesting.

I was involved in an offshore captive insurer’s decision to deny a cream that contained Fentanyl. The treating physician in Florida changed the cream from a Fentanyl-based to a non-FDA approved cream. I provided the captive with a large amount of documentation on Fentanyl. The non-FDA approved cream was OK’ed by the captive owners as a better alternative than what was considered a dangerous drug a few years ago (2011).

Why did I write up this article? Many workers comp adjusters, not only in North Carolina, need to know when an unusual decision or circumstance occurs in Work Comp. Even if you do not have claims in the Tarheel State, this type of decision may be coming to or already has happened in your state.

The reach of a decision sometimes is much longer than this North Carolina Appeals Court decision.

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Filed Under: North Carolina Tagged With: Adobe Acrobat, fentanyl, injured employee

Wisconsin Workers Comp Conundrum – Who Is or Is Not An Employee?

February 7, 2018 By JL Risk Management Consultants

Recent Court Decision Causes Wisconsin Workers Comp Conundrum For Temporary Agencies

A recent Wisconsin Workers Comp Appeals Court decision redefines the definition of an employer and employee. My definition of exclusive remedy is – Employers cannot be sued in tort/civil court if a valid workers comp policy that covers an injured employee for an incident is in effect.

picture of winning Wisconsin workers comp cheese

Wikimedia Public Use License

Exclusive remedy articles I have written over the years usually mentions a court affirming the doctrine can be found in this article search.

The case is:

IN RE THE ESTATE OF CARLOS ESTERLEY CERRATO RIVERA:
RAOUL R. EHR, SPECIAL ADMINISTRATOR, GUINIFER LIZETH
CERRATO NUNEZ AND YULY MELISSA CERRATO NUNEZ,
PLAINTIFFS-APPELLANTS,

WEST BEND MUTUAL INSURANCE COMPANY AND ALPINE INSULATION,
D/B/A A&B DRYWALL ROCK SOLID,
DEFENDANTS-RESPONDENTS.

You can find the full decision here.

two judge of Wisconsin Workers Comp making dicision

public domain by Moshe Pridan

This case stirred a large amount of Workers Comp press buzz over the last week. I usually do not mention “well worn” stories unless they may apply to your specific Workers Comp situation. As I have often said – “Coming to a State Near You.”

Wisconsin Workers Comp remains unto itself. Many major differences exist between the Badger State and other states. The lack of a medical fee schedule remains one of the major differences in Wisconsin Workers Comp and most of the US.

Another reason I am mentioning this case is this is not an isolated incident. Many court systems have ruled that what was thought to be a non-employee as a direct employee. Stats such as South Carolina were the subjects of articles on this situation. (See above article search link)

One area that I noticed was the reaction by the PEO community. PEO’s are different than temp agencies. However, NAPEO (PEO National Association) published an article yesterday which directly referenced this matter.

The Court’s final conclusion is below (emphasis in bold):

CONCLUSION

¶31 In summary, we conclude the exclusive remedy provision does not bar a temporary employee from bringing tort claims against his or her temporary employer. We further conclude, based on the statute’s plain language, that WIS.STAT. § 102.29(6)(b)1. bars only those temporary employees who make claims for compensation under the Act from pursuing tort claims against their temporary employers. In this case, it is undisputed the Estate has not made any claim for compensation under the Act. As a result, § 102.29(6)(b)1. does not bar the Estate from pursuing tort claims against Alpine and West Bend. Similarly, even if Rivera was a loaned employee of Alpine, § 102.29(7) does not bar the Estate’s tort claims. The circuit court therefore erred by granting Alpine and West Bend summary judgment.

By the Court.—Judgment reversed and cause remanded.

This case will likely end up in the Wisconsin State Supreme Court on appeal. You may want to download the PDF – see first link above- and read it for your own reference. The court decision is not a very long document.

If any new developments occur, I will provide any updates on this Wisconsin Workers Comp case.

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Filed Under: Exclusive Remedy, Wisconsin Tagged With: injured employee, NAPEO, Workers Comp policy

Free WCRI Webinar On Study Of Workers Post Accident August 9th

August 1, 2017 By JL Risk Management Consultants

Free WCRI Webinar Explores Injured Workers Post Accident – 08/09/17

The free WCRI Webinar on August 9th should be an interesting one. The WCRI hails from Boston – Workers Comp Research Institute. I learned about this study while live blogging the 2015 WCRI Annual Conference in Boston.

If you have anything to do with Workers Comp, this should be well worth your time. Knowing what employees think of the claims process should be very insightful.

Dr. Bogdan Savych’s research is groundbreaking. No organization had really ever followed the outcomes of employees after their recovery period and the Workers Comp file closes. One had to wonder what happened to injured employees after the claims was over or was far along in its development.

The 45-minute webinar on the latest worker outcomes research on Wednesday, August 9, 2017, at 2pm ET (1pm CT; 12pm MT; 11am PT).

The outcomes examined include

Recovery of physical health and functioning,
Return to work,
Earnings recovery,
Access to medical care, and
Satisfaction with medical care.

Motor and Truck Free WCRI Webinar Accident

Itayba at he.wikipedia

The research, Comparing Outcomes for Injured Workers, 2016 Interviews, is a product of an ongoing, multiyear effort by WCRI to collect and examine data on the outcomes achieved by injured workers in a growing number of states. Interviews were conducted in six of the states (Indiana, Massachusetts, Michigan, North Carolina, Virginia, and Wisconsin) in 2016. Interviews for all other states (Arkansas, Connecticut, Florida, Georgia, Iowa, Kentucky, Minnesota, Pennsylvania, and Tennessee) were conducted from 2013 to 2015.

Questions addressed:

In what states did injured workers report higher rates of return to work?
How did recovery of physical health and functioning vary across study states?
In what states did injured workers report higher rates of experiencing “big problems” getting desired medical care?
What percentage of injured workers across the 15 states was satisfied with their overall medical care?

The medical care satisfaction analysis varied among the states on the last survey.

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Filed Under: WCRI Tagged With: blogging, Indiana, injured employee

Unique Study of Worker Outcomes – Webinar July 28th – WCRI

July 15, 2016 By JL Risk Management Consultants

RE: Worker Outcomes – How Do Employees Fare After The Injury?

A measure of worker outcomes post-injury was first measured by WCRI (Workers Compensation Research Institute). I had found this study to one of the fresher studies in Workers Comp. To register click here.

Workers outcomes was one of the least understood and shoddily studies subjects until the WCRI started surveying employees after the fact. This study provided an angle that most of the WC industry decided to not track beyond settlement and/or claim file closing. (sadly)

There are a few articles in this website which cover WCRI’s assessments of worker outcomes. The first time I had seen any data from this study was in January 2015. This is my favorite of all the WCRI studies as the groundwork for this study had to be massive.

According to WCRI’s Dr. Savych. “By examining outcomes of injured workers, policymakers and stakeholders can better understand how different state systems compare in order to identify and prioritize opportunities to improve system performance.”

The areas of the study that will be covered in the webinar are metrics such as:

Recovery of physical health and functioning
Return to work
Earnings recovery
Access to medical care, and
Satisfaction with medical care.

The webinar will be state-specific or in other words which states outperformed the others in reference to the five aforementioned areas.

In what states did injured workers report higher rates of being able to go back to work and stay employed after initial return to work?
How did recovery of physical health and functioning vary across study states?
In what states did injured workers report higher rates of experiencing “big problems” getting desired medical care?
What percentage of injured workers across the 15 states was satisfied with their overall medical care?

The 15 states included in the research are

Arkansas
Connecticut
Florida
Georgia
Indiana
Iowa
Kentucky
Massachusetts
Michigan
Minnesota
North Carolina
Pennsylvania
Tennessee
Virginia
Wisconsin.

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Filed Under: WCRI Annual Conference, Workers Compensation Research Institute Tagged With: earnings recovery, groundwork, injured employee, measure

Oklahoma Federal Health Insurance Exchange Increase= Case Shifting

January 21, 2016 By JL Risk Management Consultants

Oklahoma Federal Health Insurance Exchange

The Oklahoma Federal Health Insurance Exchange has basically reported that many health policies in the state will increase by up to 34%. Reading that headline reminded me of the case shifting that was forecasted by Dr. Richard Victor at the 2015 WCRI Conference. This earlier CutCompCosts article was from a live blog during that conference.

Case shifting may occur if the injured employee decides to report what was otherwise a health claim as a Workers Comp claim. The Oklahoma Federal Health Insurance Exchange may be a great proving ground for the case shifting theory. A follow up article on the Cutcompcosts blog did indicate the occurrences of case shifting were very likely occurring.

According to the Exchange article

“Statewide, the average benchmark premium (second-lowest-cost-Silver plan) in the Oklahoma federal health insurance exchange will be 35.7 percent more expensive in 2016 than it was in 2015. This is the sharpest increase in any of the 37 states that used Healthcare.gov in 2015.”

Oklahoma will likely be a state to watch to see if case shifting occurs where the price of health insurance becomes much more expensive in just one year. The other variable that may affect the case shifting could possibly be the serious downturn in an oil-based economy due to lower imported oil prices.

I will return back this article or refer to it in a follow up article later this year or early next year.

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Filed Under: Dr Richard Victor, Obamacare, Oklahoma Tagged With: case shifting, Exchange, injured employee

Texas Claims Experienced Slow Growth – WCRI

May 28, 2015 By JL Risk Management Consultants

Texas Claims Experienced Slow Growth

Texas claims grew very slowly overall in a recent study performed by the WCRI – Workers Compensation Research Institute.

The total average cost per claim for injured workers in Texas was among the lowest of the 17 states in the study.

According to the study, CompScopeTM Benchmarks for Texas, 15th Edition, costs per claim grew 2.5 percent per year from 2008 to 2013, as measured in 2014. A 2.5 percent growth rate in WC is almost a no-growth situation.

Surprisingly, medical payments per claim accounted for more than 70 percent of the growth in total claim costs across the five years the study looked at, largely due to rapid growth in non-hospital (professional) prices paid.

The medical payments driver trend does seem to exist in almost all states which WCRI has studied over the last few years.

Medical cost containment expenses drove the increase in benefit delivery expenses since 2011 and may reflect, in part, the elimination of voluntary networks in 2011.

The study’s author said it may have changed the frequency and average payment for components of medical cost containment expenses.

In my opinion, one of the larger mistakes made on Texas claims was the removal of the voluntary networks. In March of 2014, WCRI did examine whether or not the removal of voluntary networks increased medical costs. The results were clear that the voluntary networks helped control medical costs.

One only has to look at the 70% figure as a bellwether of eliminating voluntary networks.

According to WCRI

“Medical costs were the focus of the 2005 reforms, which impacted both prices and utilization,” said Ramona Tanabe, WCRI’s executive vice president and counsel. “With one exception, our study probably reflects the full effect of that legislation.”

The exception, Tanabe said, was the impact of a closed formulary for pharmaceuticals, which was effective September 1, 2011, for new claims and September 1, 2013, for claims occurring prior to September 1, 2011. There, the study only observed partial effects from the change.

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Filed Under: Texas, voluntary networks, WCRI, Workers Compensation Research Institute Tagged With: injured employee, medical cost, total average cost

Oklahoma Opt Out Option – Two For Two In Court

May 7, 2015 By JL Risk Management Consultants

Oklahoma Opt Out Option

The Oklahoma opt out option scored another large victory with the refusal of the state’s Supreme Court to review a recent decision rendered by the Appeals Court. I track Oklahoma’s WC news closely as that is where I grew up and was trained in insurance.

The Oklahoma Opt Out option went into effect on January 1, 2014. There have been two major challenges to it including the recent Judy Pilkington et al. v. State of Oklahoma et al case that basically said the plaintiffs were denied due process. The Workers Comp claims of Judy Pilkington and the other plaintiffs were denied by their employer.

In 2013, a lawsuit was filed by The Oklahoma Professional Firefighters Association challenging the constitutionality of the new Oklahoma Opt Out law. The Oklahoma Supreme Court rejected the challenge in December 2013. The Court SB 1062 “is not unconstitutional as a multiple-subject bill.” The challenge was that each Senate Bill should only cover one subject and this was a multi-subject bill.

One passage from the original lawsuit filed in the Pilkington case may make one stop and think:

There is no due process protection in allowing an Oklahoma employer to OPT OUT of the statutory workers’ compensation system, set up its own benefit plan, make all the decisions regarding benefits, determine who and how a plan can be reviewed, and have total control of the development of the record for appeal. Nowhere along the way is there an agency or court or unbiased tribunal to look at the merits of an injured worker’s case. OPT OUT employers are allowed to replace a judge with a committee chosen by the employer. That flies in the face of the federal and state constitutions.

Do Workers Comp plans owe the injured employee due process under the law? That is a very interesting point. Can a committee chosen by an employer actually make decisions that have the force of law?

The Oklahoma Opt Out provisions will have more challenges in the future.

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Filed Under: Oklahoma Texas Opt-out Non-subscriber, opt out Tagged With: Firefighters, injured employee, workers Comp Claims

Injured Employees + WCRI Phone Interviews = Great Data

January 22, 2015 By JL Risk Management Consultants

Great Data From Phone Interviews

Injured employees now have input into a study on Workers Comp outcomes and costs.

WCRI has taken a really great angle on injured employee data. Obtaining data directly from injured employees is very forward thinking. Recently, I listened in on a webinar they produced concerning obtaining the data from the “horse’s mouth”,so to speak.

The rating bureaus are very excellent at producing resultant data. Unless I am mistaken, none of the rating bureaus (NCCI, WCIRB, etc.) actually interview the crux of the matter- the injured employees.

If you have any Arkansas, Connecticut, Iowa, or Tennessee claims or interests, these may be of help.

From WCRI –

The studies represent Phase 2 of a multi-phase study to examine worker outcomes. They can help public officials, payors, and health care providers improve the treatment and communication injured employees receive after an injury—– leading to better outcomes.

One of the areas which astounded me was the area of trust. The employees’ trust of their employer seems to be correlated with a better outcome even before they become “injured employees.”

Trust may eventually be seen as the X-Factor in reducing and/or controlling Workers Comp Costs.

We do not receive any payment or gratuities for recommending any company or organization. The recommendations made here are based on the best-use information available in Workers Comp.

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Filed Under: Arkansas, Connecticut, Iowa, Tennessee, WCRI Tagged With: injured employee, resultant data

Workers Comp Cost Savings – Onsite Medical Clinics

January 8, 2015 By JL Risk Management Consultants

On Site Medical Clinics = Workers Comp Cost Savings

One of the best ways to increase Workers Comp Cost Savings without sacrificing medical care is to use

onsite or near-site medical clinics. Medical control has been one of my Keys To Workers Comp Cost Savings since 1989.

Onsite or near-site medical clinics can lessen the likelihood that a medical only claim will turn into a claim that festers until it results in a large lost time claim.

A recent article on onsite or near-site medical clinics basically proves this premise.

A recently published National Association of Worksite Health Centers’ 2014 Benchmarking Survey noted these results:

Less than 50% of the companies surveyed actually used this great Workers Comp risk management technique
70% of employers providing on-site and near-site clinics said the clinics contributed to improvements in employees’ overall health
75% said their employees had become more engaged in work-site health and wellness programs.
The most important WC figure of all – more than 95% of those employers also said the clinics had at least partially improved employee job satisfaction and productivity

Happy employees that feel well-taken care of by their employers will almost always result in lower numbers of Workers Compensation claims. There are numerous studies that indicate job satisfaction (for some reason) lowers the Workers Comp risk for that employee.

Employers do not have to have a clinic onsite to produce these savings. A local walk-in clinic has been one of my recommendations for years as a way to cut costs. I have performed multiple studies that show significant reductions (up to 75%) with having a walk-in clinic as an initial medical provider.

An industrial-based or industrial-minded walk-in clinic is even better. The communications flow by industrial walk-in clinics are usually significant. Almost all walk-in clinics will even take plant tours so that they understand the work processes at employers.

The bottom line is that a local clinic that provides injured employees with quick high-quality medical care along with a proper information flow can be looked upon as a Workers Comp cost savings partner.

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Filed Under: Six Keys Tagged With: injured employee, on site medical clinics, Workers Compclaims

Shocking Discovery – Workers Compensation Insurance Began 2050 BC

March 26, 2014 By JL Risk Management Consultants

Ancient Sumeria Invented Workers Compensation Insurance

The origins of Workers Compensation Insurance is much more ancient than in the early 1900’s. I had always thought the beginnings of the WC system involved merchant ships or started in Wisconsin.

This article from the State of Wisconsin Department of Workforce Development (DWD) refers to 1905 as the actual start of some type of WC system. In Wisconsin the employer has three common law defenses to paying an injured worker. The three defenses were that the:

worker was also negligent,
worker knew of the dangers involved and “assumed the risk,” or
injury occurred because of the negligence of a “fellow employee.”

Under this archaic workers compensation insurance system it was very difficult for workers to recover against their employers. If they won, however, there were no dollar limits on what a jury could award.

The article from the DWD goes on to say Wisconsin in 1911, adopted a Workmen’s Compensation Act. Please refer to the passage at the end of the article for the first US Work Comp system. The reason I moved it to the end of the article is that WC (of a sort) was in force at the time of the beginning of written history.

I was able to uncover an incredible article that footnoted a book that placed the origins of WC in ancient Sumeria in 2050 BC. Yes, WC is that old. The article was produced by Gregory Guyton, Dept. of Orthopedics, University of North Carolina. The article seems to be the most authoritative one I have found on ancient WC systems. It can be found here.

From the article – “The Nippur Tablet No. 3191 from ancient Sumeria in the fertile crescent outlines the law of Ur-Nammu, king of the city-state of Ur. It dates to approximately 2050 B.C. The law of Ur provided monetary compensation for specific injury to workers’ body parts, including fractures.

The code of Hammurabi from 1750 B.C. provided a similar set of rewards for specific injuries and their implied permanent impairments. Ancient Greek, Roman, Arab, and Chinese law provided sets of compensation schedules, with precise payments for the loss of a body part.”

One caveat is there were no actual payments for Temporary Total (TTD) or Temporary Partial Disability (TPD) Only Permanent Partial Disability (PPD) was considered in ancient times. The amazing footnote to ancient PPD is that they were based on schedules very similar to the state mandated schedules of today. The bottom line is PPD is much older than TTD or TPD payments.

footnote – Wisconsin– This remedy is essentially a “no-fault” system under which a worker no longer has to prove negligence on the part of the employer, and the employer’s three common law defenses are eliminated. The intent of the law was to require an employer to promptly and accurately compensate a worker for any injury suffered on the job, regardless of the existence of any fault or whose it might be. In return, the WC Act limited the amount of money that a worker could recover. Thus, workers are only entitled to:

certain wage loss benefits,
the cost of medical treatment,
certain disability payments and
payments for vocational rehabilitation retraining.

Under the pre-WC Act tort system, workers had been able to recover for pain and suffering, loss of enjoyment of life and other damages that a jury might award. This is no longer possible under the WC Act.

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Filed Under: Permanent Partial, Temporary Partial, Temporary Total, Wisconsin Tagged With: disability, injured employee, rehabilitation nurses

Second Most Seen Provider By Injured Employees

February 19, 2014 By JL Risk Management Consultants

Injured Employees and Rehabilitation Nurses

Last week, I covered the medical provider that Injured Employees see the most overall. The second most seen medical provider by injured employees would be the rehabilitation nurse, if assigned to the file. As I have often said, rehabilitation nurses or case managers can be one of the best loss reduction techniques.Workers Compensation Case Managers or Rehab Nurses can function as multifaceted costs reducers on files. We received a batch of mishandled files a few years ago. The main theme was there were no rehabilitation nurses assigned to them.We immediately assigned out a nurse on almost every file. These files were at least one year old with an injured worker who had drawn Temporary Disability benefits since the date of the injury. The files were all settled or closed within eight months.

The rehab nurse will usually visit the injured worker at home to assess their medical condition, return to work, considerations, and other important factors when they create their initial report. Rehab nurses are not there to spy on employees.

Many times the rehab nurse will accompany the employee to the physician’s office for their medical appointments. This is very helpful in cases where there is a complex medical condition or often the rehab nurse acts as a medical term “translator” of sorts.

The main benefit is that the injured employee feels there is someone they can call if they have any questions about their medical treatment and return to work besides the adjuster.

One of the most critical jobs that a rehab nurse performs is as a hub for a return to work analysis between the physician, employee, and employer. The state of Delaware is the only state that I know of that requires a job bank provided by employers for a successful return to work.

The rehab nurse will often:

Obtain a job description or descriptions from the employer
Discuss the modified duty jobs with the employee
Discuss the jobs and provided job description to the treating physician
Have the treating Dr. sign off on the appropriate job description
Facilitate the communication and assist with the return to work

The above bullet points are all performed by field case managers. There are many state laws on how the rehabilitation nurses or case managers can operate under the WC statutes.

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Filed Under: case manager, Delaware, rehabilitation nurse, return to work Tagged With: appointment, injured employee, medical provider, nurse

Are Apologies New Risk Management Technique?

May 6, 2013 By JL Risk Management Consultants

New Risk Management Technique Involves Apologies?

Claims Magazine recently featured an article pondering the benefits of apologies by claims adjusters. Shockingly, there are 37 states that prevent apologies from an insurance company being held against them in court.

The article centered around property claims. A quote from the article “Depending on the timing and authenticity, an apology can potentially reduce the likelihood of a lawsuit being filed and result in reduced defense costs and damages. ”

Apologies in the Workers Comp arena would seem to have very little effect. Workers Comp claimants have more repetitive contact with their adjusters over a longer period of time. Apologizing for a mistake early in the process would be that beneficial.

There are no known states that provide a “safe harbor” for Workers Comp adjuster apologies. Workers Compensation is handled in most states by an Industrial Accident Board or an Industrial Commission. There are no safe harbors for apologies to Workers Comp claimants.

There are many more payments made for weekly benefits and medical bills when compared to a property liability. Adjusters may find it much easier to admit the mistake and verbally apologize. Formally apologizing would be a mistake that could likely be held against the adjuster later in the file.

Adjusters are the leaders of the file. Apologizing may leave the injured employee less than confident concerning the adjuster. If the injured employee loses confidence in their adjuster, the easiest place to turn is to a plaintiff attorney to make sure they are receiving the proper benefits.

A very late TTD check is quickest way for an adjuster or claims staff to cause a loss of confidence. If the adjuster cannot process a check timely. the injured employee will more readily mistrust the actions of the WC claims adjuster.

The adjuster is the main communicator on the file. One has to wonder if an apology should ever be one of the communications.

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Filed Under: claims magazine Tagged With: claims adjusters, damages, injured employee

Opioids – Oxycodone Gains In Populairty

January 3, 2013 By JL Risk Management Consultants

Generic Opioids Gain In Popularity- Oxycodone

Opioids have been on the Workers Comp radar screen over the past few years due to their abuse and dependency by injured workers. Hydrocodone (Vicodin) seemed to be the most popular according to the pharmacists that were contacted in 2011 and early 2012.

Vicodin is so addictive that people would actually line up to get their prescriptions just after midnight upon renewal of their 30 day Rx. Workers Comp was no different as there seemed to be a trend towards long-term heavy usage.

According to two pharmacists I talked with in December 2012 (one works the night shift 11PM – 7AM), Vicodin is now much less prescribed likely due to its horrendous effects on the stomach. In fact, the night-shift pharmacist indicated that 30mg Oxycodone is the #1 drug dispensed during his/her shift.

One of the most intriguing aspects is that Hydrocodone/Vicodin is a very strong compound. However, the dosages are much smaller than when compared to Oxycodone/Percocet. Both pharmacists pointed out that Oxycodone can be prescribed up to a 30mg dose. Even though Vicodin is stronger (7.5 mg Vicodin = 10mg Percocet), the largest dose of Vicodin available is 10mg.

Using a very quick math formula, 30mg of Percocet would equal 22.5mg of Vicodin or over two doses.

Due to bad press, OxyContin is now not as popular as in the past. OxyContin is actually just time- released Oxycodone.

The bottom line is that Oxycodone is very popular now as the dosage can be up to 30mg. That is a large amount of immediate-release medication. Oxycontin can be found in 165mg dosages, but it is a time-released opioid.

The FDA is now becoming more involved in opioid education. The FDA seemed more interested in educating consumers on extended release or long-acting opioids. They may want to add Oxycodone to the list.

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Filed Under: Opioid Tagged With: injured employee, Percocet, prescription drug

Workers Comp Narcotics – When Does 1% Equal 40% ?

June 5, 2012 By JL Risk Management Consultants

Shocking Statistics on Workers Comp Narcotics

The NCCI just released a study today on Narcotics in Workers Comp. The buzz on narcotics/opioids almost rivals fraud. I decided to read the study closely to see if there were any astounding facts.

The one statistic that stood out was that 40% of all narcotics in Workers Comp are consumed by 1% of the injured employees. I thought about this stat for a few minutes and came to the conclusion this was true Workers Comp sticker shock.

Along the same lines, but not as severe, 80% of all narcotics in Workers Comp is consumed by 10% of the injured employees. The report went on to say that the numbers have actually fallen a small amount over the last few years. That is amazing to me.

As expected, Oxycontin(r) and its generic equivalent were the most prevalent narcotic. Oxycontin and its generic was the most used narcotic in 2003. Its popularity waned. However it is now the ranked #1 again for narcotic use in Workers Comp.

I wrote about the abuse of Fentanyl in California’s WC system a few months ago. There is now even a stronger replacement for Fentanyl called Fentora. I recommend clicking the above link on Fentanyl. It is an eye-opener.

The concern is that Fentora is much stronger than Fentanyl as the dose has to be reduced when compared to Fentanyl before taking it. Fentanyl is actually 75 to 100 times stronger than morphine.

Alaska’s generic only rule in 2008 was seen as a bold move and a way to cut Workers Comp prescription costs. Oxycontin and Fentanyl/Fentora have generic equivalents. This type of rule would not eliminate narcotics being used by injured employees. Would a Pharmacy Benefit Management (PBM) program be the way to handle this conundrum?

I had seen a posting or an article somewhere today that indicated the injured employees that are taking such powerful narcotics for pain management do not ever return to work. I will find that article this evening and post on it tomorrow.

Filed Under: NCCI, Opioid Tagged With: fentanyl, injured employee, narcotic, oxycontin

Declaration Of Readiness To Proceed

April 26, 2011 By JL Risk Management Consultants

Declaration Of Readiness To Proceed -California Work Comp Form

The Declaration Of Readiness to Proceed resolves disputes in California. Another of the forms required in California. It is a form used to request a hearing before a workers’ compensation judge when an injured employee is ready to resolve a dispute. This form cannot be filed unless an Application For Adjudication Of Claim has already been processed.

Filed Under: Term Of The Day - Declaration of Readiness to Proceed Tagged With: application for adjudication, injured employee

Application For Adjudication Of Claim

April 25, 2011 By JL Risk Management Consultants

Term Of The Day – Application For Adjudication Of Claim

The Application for Adjudication Of Claim is the primary Workers Comp appeal form in California. This term of the day is one from the WCAB in California. It is a form an injured employee files to open a case at the local Workers’ Compensation Appeals Board (WCAB) office if there is a disagreement with the insurance company about the claim. It must be filed first before any other forms are filed.

Filed Under: Term Of The Day - Application For Adjudication Of Claim Tagged With: Adjudication, disagreement, injured employee

What Is Assumption Of Risk Doctrine?

April 19, 2011 By JL Risk Management Consultants

Term Of The Day – Assumption Of Risk

The Assumption of Risk term creates a lessening of liability in certain situations.. Workers Compensation usually does not allow any defendants to use this type of defense due to the “no-fault ” provisions built into the Workers Compensation system Some states do allow a reduction in benefits to an injured employee in certain cases. I have never seen it happen, though.

Situations that encompass assumption of the risk have been classified in three broad categories. The plaintiff:

In advance, has consented to relieve the defendant of an obligation of conduct toward him or her and to take a chance of injury from a known risk ensuing from what the defendant is to do or leave undone. The consequence is that the defendant is unburdened of all legal duty to the plaintiff and, therefore, cannot be held liable in negligence.
Voluntarily enters into some relation with the defendant, knowing that the defendant will not safeguard the plaintiff against the risk. The plaintiff can then be viewed as tacitly or implicitly consenting to the negligence, as in the case of riding in a car with knowledge that the steering apparatus is defective, which relieves the defendant of the duty that would ordinarily exist.
Cognizant of a risk previously created by the negligence of the defendant, proceeds voluntarily to confront it, as when he or she has been provided with an article that the plaintiff knows to be hazardous and continues to use after the danger has been detected. If this is a voluntary choice, the plaintiff is deemed to have accepted the situation and assented to free the defendant of all obligations.

Filed Under: Term Of The Day - Assumption Of Risk Tagged With: Cognizant, defendants, injured employee, plaintiff

Medical Only Claims – Worst Type May Go Unnoticed Festering

April 13, 2011 By JL Risk Management Consultants

The Very Worst Workers Comp Medical Only Claims

Recently, I posted on the pitfalls of Workers Comp medical only claims. That article is here. The worst medical only claims nightmare results from claims festering – or an unknown claim that sits with undiscovered liability.

There is a very small window of time where a claim can be investigated – regardless of whether it is a medical only or a lost time Workers Comp claim. The three point contact (Employer, Employee, and Medical Provider) must be made within 24 hours. This allows for a timely and proper accept/deny decision.

If an employee has not drawn Workers Comp benefits, these claims are usually lumped into the Medical Only category. There are a few exceptions.

Medical benefits are paid timely, but the claim is becoming more serious without any monitoring. The medical bill expense may not necessarily signal any problems if the injured employee keeps working and only has medical office visit and prescription expenses. The claims staff usually does not contact the injured employee in these cases.

Who monitors these claims? The answer is usually no one. The medical bills are processed and the claims just keeps growing and growing with no intervention.

Yes, there is a med-only adjuster than may alert their supervisors on a few of this type of claim. They are usually too overloaded with volume to read every medical report.

Medical Only Claims Adjuster Is Key

A talented Medical Only claims adjuster spots this type of claim early in the process. Do not ever think these adjusters are not that important. Heading off a very serious case of claims festering(c) saves massive claim payouts in the future.

The ability to spot these claims is an art unto itself. How does an employer monitor these claims? I will cover that next time.

Filed Under: Medical Only Claims Tagged With: benefits, injured employee, workers Comp Claims

Temporary Total Disability Period Increases Nationwide

February 28, 2011 By JL Risk Management Consultants

Temporary Total Disability Period Claims

In a recent workers compensation study by NCCI , the total disability period for injured workers indicated the Temporary Total Disability (TTD) period had increased sharply over the last three years.

I decided to check a few numbers their study produced to see if there were any underlying statistics that could have added to the increase. There was one statistic that I thought would require a further look.

The number of TTD days increased from 129 to 141 from 2006 until 2009. The unemployment rate increased over the same period from 4.6% to 8.7%. The TTD days increased 19% while the unemployment rate increased over 100%.

I cannot draw a direct correlation between the unemployment numbers and the TTD period both increasing. I would say there was some effect on TTD days by the unemployment numbers.

If there is no position in a company for an injured worker returning to work, the expected TTD period would be lengthened. With an enormous increase in unemployment, this would tend to remove positions from the employer while the injured employee was on TTD benefits.

One of the Five Keys To Saving On Workers Comp that I have written and spoken about very often is a return to work program. I do realize that in today’s economy employers of all types and sizes are finding it difficult to return an injured employee to work.

The staggering statistic by not returning an employee to work is a 400%+ claims costs increase. As the old saying goes, the longer a claim is open, the payouts become exponentially larger. An adjuster will heavily increase the reserves on a file where an employer refused a return to work. The risk of future payouts is extreme when this happens.

I had performed three large studies on Workers Comp files over the last fifteen years. The 400% came from those studies.

Filed Under: Temporary Total Tagged With: injured employee, unemployment

Discontinuation Notice Not Same As Denial

September 24, 2010 By JL Risk Management Consultants

Term Of The Day – Discontinuation Notice

A discontinuation notice is a very generic “old school” term for suspending or altering a benefit payment.

Picture of Person With Disability Discontinuation Notice Crossing In Stone River

Temporary Total (TTD) suspension is the most common one.

Every state has some type of prescribed form for removing or altering/lowering benefits. The Workers Comp Commissions deem removing an injured employee from any type of benefit as a serious matter.

If an employer or an insurance company is going to reduce or discontinue an employee’s workers compensation benefits, an employee may be given a discontinuation notice. Your workers comp benefits may be reduced or discontinued due to new information relating to your case, or perhaps your injury has healed and benefits are no longer necessary.

Filed Under: Discontinuation Notice, Reduction Tagged With: benefit payment, injured employee

What is An Independent Medical Exam (IME)?

August 23, 2010 By JL Risk Management Consultants

Independent Medical Exam Extremely Important to Work Comp

The Independent Medical Exam is one of the best after-the-fact risk management and loss reduction strategies available to claim departments. term of the day. The term mean when an insurer requests an examination of a claimant by a doctor other than the attending physician.

The previous classic definition leaves out one area. The injured employee may request an Independent Medical Exam also, but then the confusion starts once again as it that appointment an IME or is it a second opinion. Regardless, claims adjuster, risk managers, etc. forget that the employee can request an IME anytime during their treatment.

The State Workers Comp Boards rubber stamp those requests from employees. Has anyone ever seen the situation where the state rejects an employee-requested IME? I have not seen one unless the injured employee has already requested one or several.

Often IMEs are a tool used by the defense in a claim dispute. In this case, the purpose is to diminish the severity of a medical claim. .IMEs can also be used to defeat medical claims.

One of the great debates begins with the phrase “Is a second opinion on a surgery an Independent Medical Exam”?

Filed Under: Term Of The Day - IME Tagged With: doctor, exam, injured employee

Startling Workers Comp Statistic From AMA

June 11, 2009 By JL Risk Management Consultants

AMA Early Returns To Work Saves Comp

I was attending a lunch conference on Workers Compensation Return to Work earlier this week. The presenter provided this statistic from the AMA (American Medical Association). The stat was based on the longer an injured employee is out of work, the less likely they will ever return to work.

The percentage of workers that return to work after being out of work for:

Less than 8 weeks – 50%
After 26 weeks – 18%

There was also a study performed in the 1980’s and the 1990’s that said an employee that is out of work more than six months will return to work only 50% of the time. I had performed a statistical analysis of the same type on a group of public sector files. The most startling statistic was that only a very small percentage of employees out of work more than one year. I think the number was 7%.

Return to work is becoming more of a financial defense strategy for companies. Having a return to work program is very critical to reducing Workers Compensation costs. It is one of the easier methods to reduce Workers Comp payouts.

There are a few good methods to establishing and facilitating a Return to Work program. I will cover them in the next post along with the reasons for the low % of return to work after such a short time off work.

Filed Under: Early Return To Work Saves Comp $$$ Tagged With: financial defense strategy, injured employee, percentage

Governor Sanford of South Carolina

February 23, 2008 By JL Risk Management Consultants

Governor Sanford And Workers Comp

I have posted quite a few times on the plight of Governor Sanford and his trials/tribulations in trying to fix a major problem with the Workers Comp system in South Carolina. Governor Sanford has recognized a major problem with Workers Comp and is trying to correct it by preventing the Workers Comp Commissioners from being able to just pull a number out of the air as an award for permanent partial disability.

In our Workers Comp file reviews for South Carolina employers, we often see very high reserves left on a file when a viewing is upcoming on a file. These reserves directly affect what employers end up paying for Workers Comp premiums. The adjusters are usually baffled with forecasting what the Commissioner may award an injured employee on a file. There can be a very large difference on the same file with the same type of injured employee.

What Governor Sanford is trying to do is take the subjectivity out of the settlement and make it as objective as possible.

We have seen articles that say Governor Sanford is stretching his bound of authority too far or is walking down paths that his predecessors have already attempted and failed. The Supreme Court of South Carolina has decided to take up the issue soon. This may be a way for South Carolina employers to save millions in premiums.

If you are a South Carolina employer or pay South Carolina Workers Compensation premiums, please support Governor Sanford in his quest to save you part of your Work Comp budget.

Next Up – The IRS Stuns the Workers Comp World

Filed Under: Governor Mark Sanford and Workers Comp Part II Tagged With: injured employee, Workers Comp Commissioner