Seven Simple Steps for Every Workers' Comp Claim
Thursday, September 2, 2010 | 0
By Eugene F. Keefe
Keefe, Campbell & Associates
A solid and effective risk manager asked the question and we want to give all our readers simple steps from inception to closure of every workers’ compensation claim. When we audit workers’ compensation claims, we provide clear analysis and an independent measure of all these concepts.
One, stabilize any work accident immediately—then start and complete your accident investigation. The dual goal of accident investigation should be documentation and authentication.
We had a great lawyer from California tell us a clear axiom about accident investigation in workers’ compensation—you get 99.44% of your solid information in the first 24 hours after the initial report of any accidental occurrence. After that primary period for investigation, you are very lucky to get anything else of value. It can happen, but don’t count on it. If you don’t investigate and nail down the report of accidental injury, you have no base from which to work and you may receive surprise after surprise during the course of handling of the workers’ compensation claim. If you need help with accident investigation techniques and concepts, send a reply.
Secondly, set up the link to the doctors/hospitals/health care givers. As part of your pre-accident work-up, try to insure your workers at any work site are fully aware of where you recommend they receive medical attention on an emergent or non-emergent basis. Post signs and placards making those choices crystal-clear. At your earliest opportunity, get an emergency room set up and also have a defined OccHealth clinic. Please remember in Illinois, you can seek to direct your injured workers to health care, you just can’t truly fight it if they also seek other doctors or health care givers. As a further part of the accident investigation process, get a HIPAA-compliant release signed—if you need one, send a reply. Be sure to let the lead treating doctor know you will promptly see to payment of his bills if he will provide medical records with his diagnosis and prognosis for the patient. One goal of HIPAA was to insure a smooth electronic flow of medical records and bills between relevant parties.
Thirdly, when you have the medical link set up, set your targets for MMI (maximum medical improvement) and RTW or return to work at light and later full duty. These two factors work hand in hand and should be viewed that way. In Illinois, we strongly disagree with the ruling of our appellate court in Mechanical Devices where the court claims your worker is owed temporary total disability until MMI. With respect to our reviewing justices, we feel that position is poorly thought out and plaintiff-driven. Injured workers can and should be brought back to work at the earliest conceivable opportunity and most times the worker should be back to light and possibly full work long prior to MMI.
While we feel a solid claims manager should have his own expectations and reasonable targets, please make sure to ask the treating doctors to help you set fair goals for MMI and return to work. Be sure to do so with the injured worker as part of the targeting process—there is no need to hide the inquiry; the injured worker has a strong stake in the process. If the doctor won’t assist you in setting such goals, try to look for better doctors. We assure you the very worst medical providers in this and every state are doctors who staunchly refuse to allow such targets—they are almost always notorious overtreaters and overbillers. In Illinois, we recommend all of our clients routinely and aggressively implement utilization review to assist you and the treating doctors to set accurate and attainable goals for MMI and return to work.
Fourthly, push your claim targets. They need to be clearly defined goals but you need to use every tool in your quiver to make the goals happen. Let’s take a simple example—today, we audited a litigated claim for a trucking company. The worker injured his low back in a slip/fall in January 2010. All diagnostics were negative and demonstrated no disc or nerve root pathology. From our perspective, you are safe to target six to eight weeks as the outside for medical care and lost time for a purely soft tissue back strain. Ergo, some time in March 2010, you are going to start to put the hammer down in every direction. Whatever you do, don’t let the claim get out of hand. Try to give the injured worker a clear date for MMI and RTW—don’t use “six weeks”, use March 15. If you need help setting such dates for a broken arm or operated toe, send us a reply. When your goals start to waiver/wobble, consider the traditional claim tools—independent medical examinations, utilization review and surveillance. But never stop pushing the claim targets for MMI and RTW until you have made them a success on each claim.
Fifthly, keep your friends close, keep your enemies closer. Never, ever lose sight of a workers’ compensation claimant. Have a clear policy about keeping in contact; tell all employees who are injured and under the care of a doctor to call or come in to your facility no less than once a week. It is completely legal and permissible in Illinois to have the TTD check sent to your facility for pick-up by an injured worker who can’t work but can safely get around. If they can go to the doctor, have them come to you to report in and pick up their TTD checks. If a claimant attorney in Illinois says you can’t talk to your injured worker, be sure to let them know you don’t need and didn’t ask for their misguided advice. Your lawyer can’t talk to a represented claimant; in contrast, you are not a lawyer and can and should insist on regular communication with all injured workers.
When the injured worker reports in weekly via phone or visit, ask
- How are you doing?
- Are your medical bills being paid?
- Are you happy with your doctor(s)?
- Do you feel you will meet the MMI and return to work goal of [insert date]?
Sixthly, once the injured worker is at MMI and back to work, drive claim closure. In appropriate claims, make written offers of permanency. We suggest this for “hard-tissue” claims involving surgery or broken bones. You don’t want to pay much money on any soft-tissue strain claim because you will then encourage lots of soft-tissue strains. In states outside Illinois, pay the impairment rating and close the file.
Seventhly and finally, in litigated claims, use attorneys who fight to close your claims within your authority. We just audited a file where an adjuster was using house counsel on a litigated claim and told the account the matter could not be closed within three years under Illinois workers’ compensation rules. What a hoot!! We would love to read that fictional rule—we like to call it “you-can’t-close-claims-within-three-years-if-you-use-house-counsel.” Our goal at Keefe, Campbell & Associates is to close any and every claim in no less than eighteen months of the accident itself. Every day thereafter, we are confident you can use a lazy, slow firm who won’t push and isn’t motivated to keep you happy. Please do not criticize Illinois arbitrators when your Illinois claims sit around—right now, almost every single one of them will push claims if asked to do so.
And last but not least, never, ever ask claimant’s counsel for a settlement demand—it is the laziest negotiating technique possible!! Do your homework and come up with a fair and reasonable offer. The person who makes the first offer drives the inevitable negotiating bracketing in their favor. If you make the mistake of asking claimant’s counsel to make the first demand, you are always going to have to pay more than if you do the homework, make the first offer and push settlement and closure yourself. When you have offered enough money, get the case in front of a fair arbitrator and push for hearing.
Eugene F. Keefe is a principal with Keefe, Campbell & Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.
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