Workers compensation 101 the basics of managing the u s work injury system
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WORKERS’ COMPENSATION 101 The basics of managing the U.S. work injury system. Eugene F. Keefe John P. Campbell, Jr. Shawn R. Biery Keefe, Campbell & Associates 118 North Clinton Street Suite 300 Chicago, Illinois 60661 312-756-1800 312-756-1901 fax www.keefe-law.com.

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WORKERS’ COMPENSATION 101 The basics of managing the U.S. work injury system

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Workers compensation 101 the basics of managing the u s work injury system

WORKERS’ COMPENSATION 101The basics of managing the U.S. work injury system

Eugene F. Keefe

John P. Campbell, Jr.

Shawn R. Biery

Keefe, Campbell & Associates

118 North Clinton Street

Suite 300

Chicago, Illinois 60661

312-756-1800 312-756-1901 fax

www.keefe-law.com


Defining workers compensation

Defining Workers’ Compensation

  • The term is misleading to all participants at every level

  • Best defined as state-run work accident insurance or self-insurance

  • Concept has been redefined as work accident/disability insurance

  • WC should be simple: it is only three simple benefits

National Council of Self-Insurers May 2011


Wc benefits simplified

WC Benefits simplified

  • Compensation for medical expenses

    • 40-45% of all WC costs in all world WC systems and rising constantly

    • Every expectation is this will continue to rise

  • Compensation for lost wages

    • 30-35% of all WC costs in all systems

  • Permanency compensation or “the settlement”

    • Illinois is unusual for the many paths to receive it

    • Many Illinois permanency benefits are uncapped or lifetime—very few states do this

National Council of Self-Insurers May 2011


Understanding u s workers compensation delivery systems

Understanding U.S. workers’ compensation delivery systems

  • Some systems are pro-active

  • The applicant

    • Goes to a state agency

    • The state agency ascertains eligibility in conjunction with the employer

    • The state agency sets the amount and pays benefits

    • The state agency cuts it off or closes the file

    • Forms, forms, forms

  • Some WC system are “reactive” and the state agency becomes involved when things break down—typically more litigation and claim costs in reactive systems

National Council of Self-Insurers May 2011


Self effectuating work comp concepts

“Self-effectuating” work comp concepts

  • Many WC system are designed to be self-effectuating

  • As the employer, you have to learn of the accidental event in a stated time

  • You have to investigate it

  • You are supposed to accept/deny benefits

  • You follow, manage and then close claim

  • You report progress to the state agency

National Council of Self-Insurers May 2011


To optimize outcomes all u s employers should have occhealth and er link set before injury

To optimize outcomes, all U.S. employers should have OccHealth and ER link set before injury

  • Before starting work, do search for ER and OccHealth for each of your work sites/plants

  • Consider WC PPO’s, if possible in your state

  • Make sure the medical providers know your business, work rules and light work program

  • Synchronize your medical release protocol

  • Confirm you will be using triangle approach

  • Always get faxed medical updates

National Council of Self-Insurers May 2011


What to do upon learning of claim of injury

What to Do Upon Learning of Claim of Injury

  • Where necessary, stabilize emergency situation

    • Call for trained cleanup to prevent additional injuries/exposures without unnecessarily affecting needed accident investigation

    • Preserve the evidence

  • Have clear chain of command on all claims

  • Institute and complete accident investigation

    • Transmit report of event ASAP

    • Utilize medical authorizations in all claims

    • Assign responsible person to follow claim

National Council of Self-Insurers May 2011


Always get hipaa gina compliant release signed

Always get HIPAA/GINA compliant-release signed

  • Best way to check if medical release is HIPAA compliant—does it allow employee to withdraw consent?

  • Many managers feel WC exception to HIPAA means such releases unnecessary in WC setting

  • We disagree and urge all risk managers to get them

  • You need to HIPAA release to access past medical info, not just current WC care

  • You need fluid access to medical records and bills

  • If employee won’t sign or withdraws consent, no shooting allowed

National Council of Self-Insurers May 2011


Jurisdiction is the loss covered by the your state wc act

Jurisdiction - Is the Loss Covered by the your state WC Act?

  • This concept hits multi-state and/or federal coverage of work accidents

    • It is possible to get benefits from two states or concurrent state and federal benefits

    • Employer gets credit for whatever is paid

  • Main jurisdiction concepts

    • Injured in state; entitled to that state’s WC benefits

    • Hired in state but injured outside state; may be entitled to WC benefits while employed for that employer

    • Hired outside state, injured outside state; may be entitled to WC benefits if employee’s work “centered” in a given state

National Council of Self-Insurers May 2011


Is this an employee

Is this an “Employee?”

  • When is it employee versus independent contractor?

  • Lots of factors to choose from

    • Who has the WC insurance for risk/loss

    • “Control” of the job

    • Tools used

    • Method of payment—lump sum w/1099 or hourly

    • Uniforms/names on equipment

  • New concern for risk managers, “misclassification” of independent contractors

  • Most important may be who has WC insurance coverage

National Council of Self-Insurers May 2011


Total absence management

Total absence management

  • Always have a goal—after accident investigation, target return to work at light and full duty

  • Never let them “get away” or disappear—confirm all employees need to stay in touch at least weekly for all conditions whether due to work or not

  • Remember, you don’t always know condition/absence is work-related but it costs money for employees to be off

  • Fight for ‘top-down’ management approach in managing absences

  • Confirm for your employees they are important and need to remain part of your organization while off work

National Council of Self-Insurers May 2011


Is this an accident covered by state wc act

Is this an “Accident” covered by state WC Act?

  • AOO/ICO; to be compensable an accident has to arise out of and happen in the course of

  • ICO is easier to understand

    • At some point, an employee is working or near work or around their job—ICO blurs with “remoting in” and new technology; accident investigation is crucial

  • AOO is more difficult to ascertain

    • Injury has to arise from risk associated with employ

    • Employee has burden but you have to lock in facts to avoid later manipulation by counsel

    • Repetitive trauma blurs all of it

National Council of Self-Insurers May 2011


Traditional accident defenses quirks

Traditional Accident Defenses/Quirks

  • Not your state’s WC claim—other state or fed?

  • Not your Employee?

  • Liar, liar, pants on fire?

  • Horseplay?

  • Failed to provide required notice of accident?

  • Idiopathic condition?

  • Statute of Limitations?

  • Fights--Aggressor rule?

  • Intentional injuries to self/suicide?

  • Commission of crimes?

  • Alcohol/drug abuse causing or contributing to injury?

  • Safety violation?

  • Fall-downs without proof of increased risk?

National Council of Self-Insurers May 2011


How to win wc claims start with accident investigation

How to “Win” WC claimsStart with accident investigation

  • Time, place and date of injury

  • Tell me what happened in own words and language

  • Nature of injury (sprain, fracture, etc.)

  • State all body part(s) affected

  • Any previous injury to the affected body part(s)

  • State source of injury--machines, hand tools, buildings

  • State closest human to you, next closest person

  • State all witness’ names

  • Specific work process involved (lifting, carrying, etc.)

  • Name all parties whom was the injury reported

  • State specific plant or work site

  • Current weather conditions

National Council of Self-Insurers May 2011


Going to the max using that webcam or camcorder

Going to the Max—Using that webcam or camcorder

  • First, always check your surveillance videos at site

  • Next, turn over rocks and take statements

  • Try to conduct interviews in nonadversarial setting

  • Insure witness consents on tape

  • Allow the witness to talk--ask open-ended questions

  • No conclusions—follow the five senses

  • Do not rush the witness

  • List the date, time and location of the statement

  • Safely reenact the accident/claim

  • Take the recorded statement ASAP after the injury

  • If you need interview questions, send a reply

National Council of Self-Insurers May 2011


After accident investigated set targets for medical care and rtw

After accident investigated, set targets for medical care and RTW

  • If you aren’t sure of solid targeting, talk to adjuster, NCM or veteran defense attorney

  • Make targets reasonable

  • Drive them to happen with

    • UR

    • IMEs

    • Surveillance

    • Weekly meetings with employee

  • Then drive file to closure via settlement in appropriate claims

National Council of Self-Insurers May 2011


Workers compensation triangle

Workers’ Compensation Triangle

  • Critical first step: Complete accident investigation ASAP

  • Critical second step: Get HIPAA authorization signed

  • Critical third step: Have designated medical manager/claims handler contact treating physician to confirm:

    • Authorization for contact on behalf of injured worker

    • Agreement for continuing progress updates

    • Learn diagnosis and treatment plan with

      • Projected MMI

      • Projected RTW modified duty

      • RTW full duty

National Council of Self-Insurers May 2011


Make the triangle work

Make the Triangle Work

  • Confirm Physician’s Return to Work Projection with the Three Sides of the Triangle in writing

    • Your supervisor

    • OccHealth or treating physician(s)

    • Your employee

  • Drive All Sides of the Triangle to Make the RTW Projection a Reality

    • Stay in constant touch with the employee

    • Have disability checks picked up at work

    • If you don’t hear from the employee within your protocol, stop paying benefits

National Council of Self-Insurers May 2011


Keep your friends close keep your enemies closer

Keep your friends close; keep your enemies closer

  • Normally, when you have a disputed claim, tendency is to avoid employee—we should actually do the opposite

  • Never, ever trust the workers’ compensation system to work in your best interests in a disputed claim

  • Stay in contact at least weekly

  • When you talk with the injured employee, check to insure

    • Bills are being paid

    • They are receiving disability checks

    • They are progressing along expected medical recovery path

National Council of Self-Insurers May 2011


How to settle claims and get the best outcome with or without litigation

How to Settle Claims and Get the Best Outcome with or without litigation

  • As targets for MMI and RTW are reached, consider settlement and closure

  • Litigated claims, never, ever ask for a demand; do your homework and make reasonable offers and then push for hearing

  • Have solid defense attorneys provide appropriate range and values for offer

National Council of Self-Insurers May 2011


Have you got the time for enforced accident reporting

Have you got the time for Enforced Accident Reporting??

Sign-in Sheet for Wedidn’thurtyou.com, Inc.

  • I am injury free and have not been involved in any work accidents or injuries other than as listed.

  • I am physically able to perform all work assignments without accommodation

  • I understand I am to report all work accidents or physical problems, no matter how minor to my supervisor immediately.

    NameDate of last work injury (no matter how minor)

    _____________________________ ______________________________

    _____________________________ ______________________________

National Council of Self-Insurers May 2011


Understanding medicare cms

Understanding Medicare/CMS

  • Can’t settle WC claims any longer without considering Medicare’s interests

  • Medicare approval of WC settlement for claims settling for

    • $250,000.00

    • Reasonable expectation of impending Medicare eligibility

  • Need to create Medicare set-aside to insure injured worker has money to pay future medical bills

  • Need to submit to CMS for approval with settlement contract

  • ‘Super-lien’ enforcement

National Council of Self-Insurers May 2011


Summary

Summary

  • Safety first--avoid accidents at all costs

  • Have your OccHealth system in place

  • If claim arises, move to investigate and set targets

  • Get authorizations and set up the WC triangle

    • Investigate

    • Contact MD for RTW/MMI goal

    • Confirm goal to employee/supervisor

    • Make goal happen

  • Make the targets work for you

  • Bring the claim to closure

National Council of Self-Insurers May 2011


Keefe campbell associates

Keefe, Campbell & Associates

  • One of Illinois’ top defense trial firms

  • Handling defense of general liability and employment law matters in Northern Illinois

  • Handling workers’ comp defense throughout Illinois

  • 24-hour email hotline for defense information and advice at [email protected]

  • Regular email updates on all Illinois and Federal laws and appellate cases for all interested parties

National Council of Self-Insurers May 2011


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