Work Comp Tips for H.R. Managers
Thursday, July 16, 2009 | 0
By Eugene F. Keefe
Synopsis: Tips for Illinois HR managers from the workers' compensation arena.
Editor's comment: We want all Illinois human resources, benefits, safety and other managers to understand the "rules" in workers' compensation claims handling to the extent it affects your day-to-day business practices. Some of these concepts are common sense but some of them involve nuances you need to note. We feel Illinois workers' compensation insurance carriers/TPAs should work with your accounts to be sure they follow these rules to minimize premiums and their experience.
Enforced accident reporting
When you are laying off folks in this rotten economy, consider asking them to sign a form that indicates they are or aren't injured or suffering the effects of an injury before being laid off. You may even want to consider asking such questions well in advance of a coming lay off. The idea is to affirmatively reach out to your work force and ask these questions to see what the employees will say while they are still your employees. Some of our clients require the "enforced accident reporting" forms to be signed every time any paycheck is received.
- If you get a no answer, it may provide a defense when you get what we call "heartburn" claims that drive risk managers nuts when you first find out about a claimed injury after the plant is shut down and you can't investigate because everyone is gone. It is even worse when you first find out about an injury claim from your former employee's lawyer.
- If you get a yes answer, assume you are now aware of an accidental occurrence or occupational exposure and start your detailed investigation straight away. Pull security video. Consider web-cam statements. Inquire about all aspects of the claimed occurrence and potential disability. Project and track medical recovery to MMI. Seek to resolve all such claims without litigation whenever and wherever possible.
We cannot guarantee positive results but this HR/claims management concept should be somewhat inexpensive and may slow down phony claims. We don't know why more Illinois insurance companies and TPA's don't require their accounts employ this concept, as it might directly impact overall insurance costs.
We have a form you may consider as part of this effort. If you are interested, send an e-mail.
Parking lots
If you own and provide a parking lot at your work sites, it is much more likely to have a fall-down or other injury that may be compensable if the lot is not open to the public and is limited to your workers only. If the lot is open to the public and your workers park in the lot, do not designate where employees should park. The ruling in the Wal-Mart v. IWCC decision held such fall downs are "risks common to the public" if the worker falls in a public parking lot without any direction as to the site they park. In a ruling that was issued shortly after the Wal-Mart decision, a hair salon employee fell down after being encouraged to park in the back of the company parking lot and benefits were ordered.
On a similar note, if you create some public entrances and some employee-only entrances, injuries arising in the employee-only areas are much more likely to be ruled compensable. It is your call on whether you want that heightened exposure but our vote is to only have employee-only entrances if you truly have to.
Recreational and rehabilitation activities
If you are going to have your workers:
- Hold a summer picnic or get-together for all or some of your workers;
- Allow employee to work-out before, during or after work hours;
- Allow them to play sports like baseball/softball, basketball, soccer, tennis on company-sponsored teams;
- Have a going-away or testimonial lunch or dinner;
- Attend a big league ball game or other company-sponsored event;
- Give away personal trips in company raffles or safety programs;
- Enter needed drug or alcohol rehabilitation programs;
- Get counseling for marital or non-marital couples issues
You may have high workers' compensation exposure you can avoid. The rule in Illinois is such attendance has to be voluntary. You have to be able to demonstrate participation and the activity offered is voluntary and not implicitly or explicitly required as a condition of work.
If you "order or assign" the employee to attend such activities, anything that happens in the program may be compensable under Section 11 of the Illinois Workers' Compensation Act. Litigation to interpret that Section is expensive and outcomes may be difficult to predict. If you pay employees while they attend such events and don't pay employees who don't attend, you will have workers' compensation exposure because our Appellate Court said that is implicitly "mandatory" because employees need their pay.
We have a draft release that can be signed by employees that will confirm they understand and perceive participation to be voluntary. The release will clearly document and outline your workers are not being "ordered or assigned" to participate. If you want a free copy of the release for your use, send us a note.
Fights/Employee violence
The preliminary guideline in Illinois is to greatly discourage fighting or violence in the work-place. Consider making it an enforced safety rule to terminate any employee(s) who instigate physical contact with or against other workers. Never, ever ignore threats, harassment, bullying or intimidationalways address such issues in a progressive fashion to avoid both workers' compensation and employment practices claims. All actions taken to address such issues will help to build your defense case-in-chief, should a later claim be filed.
The rule from workers' compensation where you have a fight is the aggressor doesn't recover and the non-aggressor does get WC benefits for their injuries. The weirdest thing that happened in Illinois is two female workers came to blows and the fight was recorded on security tape. They both struck each other and made contact at precisely the same time. The Commission initially denied benefits to both. The Appellate Court remanded the ruling back to the Commission, ordering them to determine who the aggressor was and who wasn't. With respect to the Appellate Court, if you ever have seen hockey fights, lots of them involve dual aggressors and we don't see why there should be a rule that someone has to get benefits and someone doesn't where both parties are aggressors, both claims should be shut out.
Synopsis: A must-read for all of our readers who care about rising medical costs. Whatever comes from Washington, D.C. on health care "reform" should and must embody this research.
Editor's comment: While looking up other things, we found an amazing article about medical cost controls that brings up chilling and crucial thoughts for doctors, hospitals, nurses, risk and human resources managers and everyone involved in the workers' compensation and group health care matrix.
We are confident, medical costs are rising and are certain to continue to escalate. If you note our earlier articles about spinal fusion surgeries in this state now being billed at $75,000 to $300,000 for hospital costs only, you can readily see medical costs are clearly outstripping all other costs in the workers' compensation arena. We have a number of pending claims where the main fight is claimant wanting full payment of 100% of the costs of such surgeries from their employers under the WC and not group side.
U.S. health care costs have grown from what was about the middle of the average of OECD countries (Organization for Economic Cooperation and Economic Development) to what is now double the average. The surprising thing here is during the last ten years, the increase in workers' compensation medical costs is twice the rate of group health increases.
The National Council on Compensation Insurance or NCCI has demonstrated the rise in workers' compensation medical costs is due to lack of utilization review in workers' compensation systems, leading to over-utilization of health care services, especially those for nagging and chronic soft tissue claims. This problem is a crucial stage in Illinois that brought in UR but sometimes sporadically uses and enforces. As we have told our readers, the "wise guys" who have a controlling say at the Illinois Commission don't want it and feel it is bad for their business.
An observer named Atul Gawande, M.D. has published a must-read article in the June 1, 2009 issue of The New Yorker. He has demonstrated even more convincingly over-utilization of medical services, including testing, surgery and hospitalization, is the main cost driver of America's health care system.
Dr. Gawande's lengthy article, The Cost Conundrum, provides a clear position for why costs in the U.S. are becoming so wildly high, but outcomes remain mediocre. Dr. Gawande reduces the problem to its simplest terms. He outlines the American health care system has turned the medical profession into assembly-line work that focuses on lots of care at a spiraling cost. He states our physicians in primary care and specialties are economically incentivized to over-prescribe in all areas. He also clearly shows, the areas of the country that produce the highest costs due to over-prescribing also produce the poorest health care results.
Dr. Gawande analyzes health care in relatively rural McAllen, Texas, a town in a Texas county with the lowest household income in the U.S. He notes after Miami, this county has the second most expensive health care costs. Dr. Gawande wanted to know why. He also wanted to compare and contrast health care costs in El Paso County, eight hundred miles to the north with similar demographics that were 50% lower.
Dr. Gawande also analyzed the Mayo Clinic in Minnesota with some of the best medical technology on the planet and why it produces some of the highest quality medical care in the nation but has costs that rank in the lowest fifteen percent of the nation. He was also fascinated with why Mayo Clinic was able to replicate that amazing achievement when it opened a center in Florida that has one of the country's highest cost states.
Dr. Gawande noted when he found excellence around the country, doctors worked together in teams. All of the doctors continuously peer-reviewed each other's work. In low-cost, high-quality areas, physician income was somewhat neutralized; there was only a limited amount to be made. At Mayo Clinic, for example, doctors are all on salary and didn't make more or less, no matter how much care was provided. Whether they order ten procedures or none, Mayo Clinic physicians and care-givers are paid the same. This is central to understanding how to fix the problem. As Gawande writes:
This last point is vital. Activists and policymakers spend an inordinate amount of time arguing about whether the solution to high medical costs is to have government or private insurance companies write the checks. Here's how this whole debate goes. Advocates of a public option say government financing would save the most money by having leaner administrative costs and forcing doctors and hospitals to take lower payments than they get from private insurance. Opponents say doctors would skimp, quit, or game the system, and make us wait in line for our care; they maintain that private insurers are better at policing doctors. No, the skeptics say: all insurance companies do is reject applicants who need health care and stall on paying their bills. Then we have the economists who say that the people who should pay the doctors are the ones who use them. Have consumers pay with their own dollars, make sure that they have some "skin in the game," and then they'll get the care they deserve. These arguments miss the main issue. When it comes to making care better and cheaper, changing who pays the doctor will make no more difference than changing who pays the electrician. The lesson of the high-quality, low-cost communities is that someone has to be accountable for the totality of care.
The Cost Conundrum, by Atul Gawande, should be required reading for anyone interested in understanding and participating in American health care reform.
The link is here. A bio on Dr. Gawande is at: Atul Gawande.
Synopsis: New ethics rules for lawyers will be coming at Illinois legal practitioners at the beginning of next year or 01/01/10. For all our wise-guy readers; yes, lawyers have to be ethical. We also feel the frenetic Democrat-led Illinois Supreme Court will keep us jumping.
Editor's comment: If you are a busy claims rep or HR person, you may want to skip this article and go to the next one. For the lawyers who read this, following the continuing legal education requirements issued in the last several years by our highest court, we are confident they will continue to throw more and more stuff at already harried legal practitioners.
When it comes to ethics, we have the Big Three — three easy guidelines we teach all the law students who attend our workers' compensation law course.
- Don't steal money from your clients. This concept is a no-brainer and includes commingling client money with your money;
- Don't be a jerk to anyone — swearing and rude actions will always and should always come back to bite a lawyer;
- Keep track of your cases/files and keep them up to date —this protects you from your clients and insures you have malpractice coverage when you can demonstrate due diligence.
Beyond the simple and patent ethics Big Three above, there are details and issues to consider, like not directly contacting your opponent's client without their advanced consent/permission.
New rules
The Supreme Court ethics rules will cover conduct to include a lawyer's allowable relationship with a client, advertising by e-mail and buying and selling law firms or practices. Lawyers who learn of wrongful corporate conduct will have new responsibilities to disclose what has been felt to be confidential information to prevent client fraud.
Criminal prosecutors will have new responsibilities and will have to make reasonable efforts to assure an accused has been advised of his right to counsel and has been given a reasonable opportunity to obtain a lawyer.
Precautions will have to be taken when issuing a subpoena to another lawyer to gather information about the lawyer's past or present client.
Legal observers note these rules simply reinforce current rules and seek to put them into a more readily understood format.
The new ethics rules adopted by the Illinois Supreme Court will also contain a number of guidelines that haven't appeared in any previously enacted code. They include:
- A rule describing duties lawyers owe to a prospective client arising from preliminary discussions before a formal lawyer-client relationship.
- A rule defining the duties of a lawyer who serves as a third-party neutral, such as a mediator or arbitrator.
- A rule describing the duties of an advocate in a non-courtroom proceeding, such as before a legislative body or an administrative agency.
- Rules addressing how a lawyer should respond when he/she receives a document that was inadvertently directed to you. This rule follows an ABA guideline and is the reason KC&A doesn't use typical "letterhead" for correspondence any more.
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Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates.
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